The Round Up: Turning Back Asylum Seekers at Sea

8 May 2017 by Thomas Beamont

A new report has argued that the practice of turning back asylum seeker boats at sea is illegal under international law, and does not deter others from making the journey.

Arrivals in the EU

The numbers of migrants arriving by boat has increased in recent years. Specifically, since 2015 arrivals from Syria, Eritrea, Afghanistan and Iraq have increased significantly.

The report argues that operations coordinated by the European Border and Coast Guard has overseen a ‘securitarian’, rather than humanitarian, response to arriving boats.

EU Member States have operated Search and Rescue (‘SAR’) initiatives for a number of years. For example, the Italian Mare Nostrum operation rescued more than 140,000 migrants in distress at sea between October 2013 and October 2014. The report argues that Operation Triton, run by Frontex and in replacement of Mare Nostrum, has led to a focus on border security and migration control, and does not include a proactive SAR component. The report extends these criticisms to Australian border security operations.

Obligations under international law

The report outlines a number of obligations which states are under in international law. For example, Article 98(1) of the UN Convention on the Law of the Sea (UNCLOS) provides that:

every State shall require the master of a ship flying its flag…to render assistance to any person found at sea in danger of being lost” and “to proceed with all possible speed to the rescue of persons in distress.

The report also outlines obligations on coastal states. These include making arrangements to ensure:

the establishment, operation and maintenance of [SAR] facilities as are deemed practicable and necessary

To proactively guarantee preparedness in cases of distress.

The report argues that the current practice in both the EU and Australia discourage compliance with these duties under international law.

Criticisms of the current regime

The report makes a number of criticisms of the EU’s approach, and gives a number of recommendations.

The criticisms include that the strategies in Europe and Australia are not viable as they include practices of containment without protection, and lack a comprehensive approach to at-sea migration which conforms with States’ international legal obligations.

The recommendations include that genuine SAR missions are conducted, that automatic returns from sea are avoided, and to allow disembarkation and access to the intercepting state’s territory for the purposes of refugee status determination.

The practice of the Australian immigration agencies is also criticised in the report. The Australian immigration minister, Peter Dutton, said last month that the operation “has brought maritime people smuggling to a standstill and saved countless lives.”

In the news:

Local government Lawyer reports that a local council has successfully prosecuted a taxi driver who refused to let a passenger with a guide dog into his vehicle. The driver was approached by a Fair Trading officer accompanied by a guide dog. The Fair Trading Officer was wearing recording equipment. The Equality Act 2010 places a duty on taxi drivers to carry guide dogs, and they must not treat passengers less favourably because of their disability. The driver had refused to carry the dog on the basis that he had nowhere to put it. The man, who pleaded guilty, received a six-month conditional discharge, ordered to pay partial costs of £100, and a victim surcharge.

The Guardian reports that the official forensic science regulator has called for an increase in legal aid funding. Dr Gillian Tully’s comments are the latest in a series of skirmishes over legal aid since the series of reforms in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 were introduced. Dr Tully’s comments focus on the effect of digital evidence for legal aid. She explained that the current regime imposes time pressures which may leave digital forensics standards unmet. The regulator explained that she was working with the Legal Aid Agency to try to increase the level of funding available to criminal defence lawyers.

The Guardian also reports that the UN has accused Saudi Arabia of using terror laws to suppress free speech. The report, which came after a visit by Ben Emmerson QC on behalf of the UN to Saudi Arabia, contains complaints of wrongful arrest, misuse of court procedures, and cases of torture to extract confessions. The report also specifically calls for the release of 10 Saudis who say that they have been arrested for their criticism of the regime. The report praises the standard of Saudi prisons, but the criticisms of human rights abuses in the country echo those made by the German Chancellor, Angela Merkel, this week.

The Convention Rights page of this website has been updated. The updates cover the potential implications of the vote to the leave the European Union on the UK’s obligations under the European Charter of Fundamental Rights and Freedoms. It can be read here.

In the courts

R (on the application of P and others) v SSHD [2017] EWCA Civ 321:

The Court of Appeal has upheld a number of challenges to the ‘DBS’ system of criminal record disclosure. The DBS mechanism was previously challenged in 2013, on the basis that it was not compliant with jobseekers’ right to privacy under article 8 of the ECHR. The Court found in that case that the inclusion of all criminal offences, regardless of their nature or time elapsed since the conviction, on DBS certificates was unlawful. A number of changes were introduced as a result of the case. These included that that the offender’s age at the time of the conviction, and the severity of sentence handed down, became relevant factors in deciding whether past offences should be disclosed.

That revised regime was the subject of challenge in this case. The system was once again impugned on article 8 grounds. The Court of Appeal held that the revised system was not “in accordance with the law”, and therefore the interference with applicants’ article 8 rights was not lawful. This was because it lacked a ‘mechanism for refinement’ because, for example, applicants with more than one conviction still saw both included by that reason only. The Court noted that it was for the legislature to devise a revised system, but makes some interesting observations about the public interests in play.

David Hart QC has written an analysis of the case for the UK Human Rights Blog here.

by Thomas Beamont