Offshore Camps for Asylum-Seekers: An Outlandish Idea?

By Dr. Noelle Quenivet. ILHRU. UWE, Bristol

At the end of April this year the UK Conservative MP Julian Brazier suggested in a pamphlet entitled ‘An Overcrowded Land?’ (Conservative Way Forward) to set up asylum-seekers camps outside the territory of the United Kingdom. Brazier suggested Kenya as a potential candidate.

This is nothing new. In the early nineteen nineties various European States tightened their asylum laws and toughened immigration policies in response to a domestic surge of extreme nationalism levelled against ‘foreigners’. To compensate for what was viewed as a security deficit caused by the abolition of internal border controls asylum policies were harmonised at EU level. Moreover, using the ‘safe country’ principle, readmission agreements were concluded with a range of neighbouring countries which were at the time candidates to the European Union and thus keen to show that they were able to control their borders. In other words, these States acted as ‘buffer zones’. This ensured that so-called ‘undesirable’ migrants never entered the EU territory in the first place and could be legally and quickly removed to a safe third country. Fortress Europe was born. Yet, at no time was there a discussion of processing asylum applications in Eastern and Central European countries.

Interestingly, in 2003 at the Thessaloniki EU Summit a proposal to establish “transit processing centres” located outside of the EU boundaries and create regional protection zones was tabled. In the light of the current proposal, none would be surprised to know that the UK was the proposer (probably more by the fact it was a Tony Blair, a Labour PM), supported though by the Netherlands, Belgium and Austria. Under the guise of a better management of the asylum process, the thrust was that asylum-seekers would be held in detention and screened before entering the territory of the European Union. Indeed there was some allegation that the UK had even thought it could trial the system in Croatia as it had started preparing the building where the asylum seekers would be received. Such allegations were however denied by the Home Office. Other potential candidates were Russia, Belarus, Romania, etc. And in the long run the UK had even considered setting up centres in Kenya and Pakistan. Surprisingly, the UNHCR submitted a parallel proposal, largely supporting the British approach, though recommending such processing centres to be established within the EU and calling for a rapid determination of claims. However the proposal was rejected by the European Union and then UK later dropped the idea too.

Would such a system be desirable or legal today? The practical implementation of such a system would first require the creation of immigration tribunals abroad as Julian Brazier MP suggests the applications to be examined by a British tribunal. Moreover, though the proposal by Julian Brazier MP is rudimentary (especially in comparison to Blair’s), one must surmise that individuals flown out to the processing centres will be under some form of detention under British control. And that is where it bites! The UK would, whether MP Julian Brazier like it or not, be bound by human rights law and more specifically the Human Rights Act and thus the European Convention on Human Rights.

Indeed the case-law extends the jurisdiction of the ECHR to situations where the state exercises its authority or control over individuals (Al-Jedda v the United Kingdom, Application No 27021/08, para 85; Issa and Ors v Turkey, Application No 3821/96, para 71). Much alike the situation in Medvedyev and others v France (Application No 3394/03, para 67) the UK would exercise full and exclusive control over the carrier from the moment it would leave the UK to the moment it lands in Kenya, i.e. the asylum-seekers would be effectively within the jurisdiction of the UK. What is more, once in Kenya, State custody over an individual clearly constitutes jurisdiction (Al-Skeini and others v UK, Application No 55721/07, paras 136-137) and as these asylum-seekers would be in detention or at least under the control of public officials, such public officials would need to act in conformity with the European Convention on Human Rights.

The detention of an asylum-seeker to facilitate the examination of his/her application might be justified under Article 5(1)(f) ECHR (Saadi v UK, Application No 13229/03, para 66) . Yet, this “undeniable sovereign right to control aliens’ entry into and residence in their territory” (Amuur v France, Application 19776/92, para 41; Saadi, para 64) is constrained by the provisions of the Convention (Mahdid and Haddar v Austria, Application No 74762/01, at 10; A A v Greece, Application No 12186/08, para 56; Amuur, para 41) and the UK would have to ensure that inter alia:

– there is  legal basis in UK law to allow for such detention (Saadi, para 67) and that the legislation complies with the principle of legal certainty (A A, para 88, Douguz v Greece, Application No 40907/98, para 55),

– the individual is able to challenge the lawfulness of his/her detention and this review goes beyond ascertaining the existence of a legal basis for the detention (A A, para 70; Dougoz, para 61). This means that tribunals determining refugee status will also have to be endowed with the powers to review the lawfulness of the detention.

– the detention is not arbitrary, i.e. the detention carried out bona fide, closely connected to the aim of preventing a person to enter unlawfully on the territory, location and conditions of detention must be appropriate, length of detention should not exceed what is necessary to reach the aim pursued (A A, para 89; Saadi, para 74).

– in particular, ‘there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention’ (Mubilanzila Mayeka and Kaniki Mitunga v Belgium, Application No 13178/03, para 102). In other words, the vulnerability of the individual placed in such a situation must be taken into account. For example, unaccompanied minors should not be detained (Mubilanzila, para 103). This means that the UK would have to assess the lawfulness of their detention prior to sending them to Kenya.

The conditions of detention will need to comply with Article 3 ECHR requirements. Whereas the ECtHR acknowledges that deprivation of liberty inevitably causes some form of suffering and humiliation, such measures only reach the threshold of applicability of Article 3 ECHR if they exceed the level of distress and suffering inherent in measures of deprivation of liberty (A A, para 55). Factors that must be taken into account are the physical conditions of detention (e.g. sanitation, hygiene, space, sleeping facilities) (A A, para 61; Douguz, para 48), the age of the detainee (Muskhadzhiyeva and others v Belgium, Application No 41442/07, para 63) and the length of the detention (A A, para 61). In relation to minors, whether unaccompanied (Mubilanzila, paras 55-59) or accompanied by relatives (Muskhadzhiyeva, para 63), they must be hosted in detention centres that are suitable to their needs, paying particular attention to their psychological and physical health. Likewise, disabled individuals can only be hosted in suitable centres (Price v United Kingdom, Application No 33394/96, para 30). In other words, the UK will need to ensure that the conditions of detention offered to asylum-seekers in Kenya fulfil all these requirements.

Last but not least, if the individual is not deemed to fulfil the requirements of a refugee, the UK would have to release the individual as it is unlikely that there are further grounds for keeping him/her detained (see below). In this case, the UK could probably remove him/her to another country. However, the ECtHR has specified that “the responsibility of a Contracting State may be engaged, indirectly, though placing an individual at a real risk of a violation of his rights in a country outside their jurisdiction” (Z and T v United Kingdom Application No 27034/05, at 6). This means that the UK must ensure that the individual once returned will not be subjected to treatments in violation of the following Convention articles:

          Article 3 ECHR: In Cruz Varas and others v Sweden (Application No 15576/89, para 70) the Court specified that the extra-territorial effect of Article 3 ECHR as identified in Soering v United Kingdom (Application No 14038/88, para 91) also applied to rejected asylum-seekers (see e.g. Salah Sheekh v The Netherlands, Application No 1948/04, paras 136-137; N v Sweden, Application No 23505/09, paras 51-52).

          Article 5 ECHR: If the prospect of arbitrary detention is sufficiently flagrant the individual cannot be returned (Tomic v United Kingdom, Application 17387/03, at 12; Z and T, at 7).

          Article 6: On several occasions, the Court has specified that a State cannot return an individual who has suffered or risks suffering a flagrant denial of a fair trial in the receiving country (Z and T, at 6; Othman (Abu Qatada) v United Kingdom, Application 8139/09, paras 258-262). Moreover, if this risk of flagrant denial of fair trial might result in the death penalty such treatment would amount to arbitrary deprivation of life in breach of Articles 2 and3 ECHR (Bader and Kanbor v Sweden, Application No 13284/04, para 42).

          Article 9 ECHR: Also, in Z and T the Court did not rule out the possibility that, in exceptional circumstances, there might be a protection against refoulement on the basis of Article 9 ECHR but stressed that it was more likely that this Article would be engaged in combination with Article 3 ECHR (at 7).

Once established that the person can be removed, deportation proceedings must be prosecuted in due diligence or the detention will cease to be permissible (Saadi, para 72). The Court has clearly spelled out detention under Article 5(1)(f) is only justified for as long as deportation or extradition proceedings are in progress (Louled Massoud v Malta, Application No 24340/08, para 60).

If the individual cannot be removed because e.g. he/she is stateless, there is no State willing to take the individual, there is a danger that the person’s removal will breach the UK’s obligations under the ECHR, he/she is undocumented and documents cannot be issued by the relevant authorities, etc. then it seems that the only solution would be for the UK to accept the individual on its territory on other grounds than refugee status. Keeping the individual in detention in Kenya is likely to amount to arbitrary detention in breach of Article 5(1)(f) ECHR as there is no ground for the detention; for, unless deprivation of liberty falls within one of the grounds listed in Article 5(1)(a) to (f) it is unlawful (Saadi, para 43; Louled Massoud, paras 59 and 67). Releasing the individual might not be an option that Kenya will agree upon in the treaty. So the UK might be stuck with its own little quasi-Guantanamo…

Overall, setting up the system suggested by Brazier is likely to encounter a range of legal impediments. Simply said, it is not a runner!

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