Interception and asylum: when migration control and human rights collide.

Author:Brouwer, Andrew
 
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Abstract:

Preoccupied with sovereign control of access to their territories, states are devoting increasing energy and resources to intercepting and turning back migrants before they arrive at their borders. Interception measures, however, rarely include adequate procedures to distinguish those who need protection from those who do not. As a result, desperate people are left with no option but to resort to ever more dangerous and disruptive methods of migration. This article surveys the main types of interception measures and their effects, and examines the international refugee and human rights law issues raised by these practices. It then reviews recent developments at the level of UNHCR's Executive Committee with regard to interception and concludes with some suggestions for building compliance with principles of refugee protection in the context of interception measures.

Resume

Soucieux de pouvoir controler completement l'acces a leur territoire, les etats consacrent de plus en plus de ressources et d'efforts a intercepter et a renvoyer les migrants avant meme que ces derniers n'atteignent leurs frontieres. Darts la realite, cependant, il est tres rare que les mesures d'interception comportent des procedures adequates pour departager ceux qui ont un besoin reel de protection des autres. Il en resulte que les gens desesperes n'ont d'autre choix que d' avoir recours a des methodes de migration qui sont de plus en plus dangereuses et disruptives. Cet article examine les principales mesures d'interception et leur efficacite, et se penche sur les problemes souleves par ces pratiques au niveau du droit humain international et du droit d'asile. Il examine ensuite les derniers developpements intervenus au Comite executif de la HCR sur la question de l'interception, et conclut avec des suggestions visant a encourager la mise en conformite des mesures d'interception avec les principes de la protection des refugies.

Introduction

Many States which have the ability to do so find that intercepting migrants before they reach their territories is one of the most effective measures to enforce their domestic migration laws and policies.

International Organization for Migration, 2001 (1)

The blandness of this observation masks the seriousness of the assault on the institution of asylum posed by interception practices. Concerned about sovereign control of access to their territories in an age of preoccupation with national security, "irregular" migration, and the so-called asylum-migration nexus, states are devoting more and more energy and resources to turning back migrants before they arrive at their borders. States regard these programs as defences against the subversion of orderly immigration and refugee resettlement programs by "bogus" refugees and "queue-jumpers." However, in practice these interception measures leave desperate people with no option but to resort to ever more dangerous and disruptive methods of migration and ultimately erode the institution of asylum.

Existing interception measures rarely include adequate procedures to distinguish those who need protection from those who do not. Unless current practices are either abandoned by states--which is unlikely--or are reformed to conform to human rights law and refugee protection norms, access to asylum will progressively be choked off. Some refugees may reach asylum in a country neighbouring their own or within their region of origin, but those opportunities may also dwindle, as countries of first asylum see the industrialized states actively erecting barriers to prevent asylum seekers from reaching their territories.

This article will look at the main types of interception measures and their effects, and will examine the international refugee and human rights law issues raised by these practices. (2) It will then review recent developments at the level of the Executive Committee of the United Nations High Commissioner on Refugees (UNHCR) with regard to interception and conclude with some suggestions for building compliance with principles of refugee protection in the context of interception measures.

Definition of Interception

There is no generally accepted definition of interception. (3) A provisional definition was proposed by UNHCR in a June 2000 report:

[I]nterception is defined as encompassing all measures applied by a State, outside its national territory, in order to prevent, interrupt or stop the movement of persons without the required documentation crossing international borders by land, air or sea, and making their way to the country of prospective destination. (4) This definition applies equally to actions taken on land or at sea. For the purposes of this paper, it will not he considered to extend to passive measures such as visa requirements, which are the most common form of migration control, or the carrier sanctions which buttress visa requirements, but rather will be limited to active intervention by states to impede the movement of persons.

Indeed, UNHCR's Executive Committee has recently construed interception in this narrower, active sense, as:

... one of the measures employed by States to:

(i) prevent embarkation of persons on an international journey;

(ii) prevent further onward international travel by persons who have commenced their journey; or

(iii) assert control of vessels where there are reasonable grounds to believe the vessel is transporting persons contrary to international or national maritime law;

where, in relation to the above, the person or persons do not have the required documentation or valid permission to enter ... (5)

The following case studies illustrate the types of issues involved in interception:

Case Study No. 1

Mr. K., an Iranian writer, used false documents to flee Iran hoping to reach Canada, where his brother is a citizen. (6) He travelled by air, via Moscow and Havana. At the airport in Havana, while transferring to the final leg of his journey, his fraudulent documents were discovered and he was refused permission to board his flight to Canada. Cuba is not a party to the 1951 Convention relating to the Status of Refugees (1951 Refugee Convention) (7) and did not give Mr. K. an opportunity to claim asylum there, but put him on a plane back to Moscow.

Before being sent back to Moscow Mr. K. was able to telephone his brother in Canada, who alerted UNHCR in Ottawa to his plight. UNHCR contacted their colleagues in Moscow, to make sure that Mr. K. was not refouled to Iran and was able to seek asylum in Russia, which is a party to the 1951 Refugee Convention (albeit with significant shortcomings). Despite numerous requests, however, UNHCR staff were denied access to Mr. K., who was detained at Moscow's International Airport. UNHCR's office in Moscow engaged a lawyer for Mr. K., who presented an asylum application to the Russian authorities on his behalf. Nevertheless, Mr. K. was refouled to Tehran where, according to his brother, he was detained on arrival.

Case Study No. 2

On August 26, 2001, the Tampa, a Norwegian freighter, rescued 430 people from a sinking Indonesian ferry. (8) The passengers, mostly Afghans, asked to be taken to Christmas Island, Australia, to seek asylum. When the Tampa sought permission to dock at Christmas Island, it was refused by the Government of Australia, which insisted that Norway or Indonesia should take responsibility for the asylum seekers. Neither of those governments, however, accepted responsibility. When the Tampa entered Australian waters, Australia deployed troops to prevent the ship from reaching land, forcing it back outside of Australia's territorial sea. (9) The master of the Tampa requested help, as some of the migrants were in need of medical care. Yet the Australian government would not allow the asylum seekers to enter its territory. There was a stalemate.

On September 1, Australia announced that it had found a "solution": Australia would pay the government of Nauru, a tiny Pacific island and former Australian dependent territory, an initial sum of US$10 million in aid in exchange for Nauru's agreement to house the asylum seekers while their claims were being processed. UNHCR would assess the claims of the asylum seekers on Nauru. Australia's "Pacific Solution" was born.

Case Study No. 3

S., an Iraqi widow, was smuggled out of Iraq in the autumn of 2002 together with R., her nine-year-old daughter. (10) The pair were brought to Iran through the marshlands of southern Iraq. They remained in Iran for two months, while a smuggler arranged forged passports of a European country for them. In late 2002, the smuggler took them to Tehran's Mehrabad Airport and flew with them to Dubai. At Dubai airport, they were to board a flight to Canada, where S. was to be met by a man she had married by proxy. Before they reached the passport control area at Dubai airport, S. was told by the smuggler to pose as his wife. R., the child, was instructed to walk ahead of the pair and not to look back or call out to them. She passed through the exit control, but S. and the smuggler were stopped. They were held at Dubai airport for two days, where they were questioned separately by the authorities. The United Arab Emirates are not Party to the 1951 Refugee Convention. S. admitted that she was attempting to reach Canada with the help of a smuggler and a false passport, and was sent back to Iran. There, she was detained at the airport for five days, before being bailed out by someone whose assistance had been arranged by the man in Canada whom S. had married by proxy. The Iranian authorities gave her ninety days to leave Iran.

Meanwhile, the child, R., reached Canada, applied for asylum, and was recognized as a refugee by Canada's Immigration and Refugee Board. Mother and daughter remain separated, while UNHCR and Canadian government officials grapple with the case.

Case Study No. 4

The United States actively intercepts vessels in the Caribbean if there is suspicion of illegal...

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