The UK’s Afghanistan Resettlement Scheme

9 September 2021 by

Refugees are airlifted out by British forces. Image: The Guardian

On 15 August, the government of Afghanistan collapsed, President Ashraf Ghani fled and shortly afterwards the Taliban took power. Thousands of the 39 million population have been scrambling to flee the future that now awaits Afghanistan. Countries are working to accommodate Afghan refugees — including the UK, which decided to resettle 20,000 refugees.

What is happening in Afghanistan?

The Afghan government’s rapid collapse came two decades after the U.S. invaded Afghanistan to as part of the ‘War on Terror’ to seek to deny Al-Qaeda a safe base for operations in the country following the 9/11 terrorist attacks and the refusal of the Taliban government to extradite Osama bin Laden. The immediate context is the decision in April of this year by President Biden to withdraw the 3,200 troops U.S. and NATO troops by the twentieth anniversary of the 9/11 attacks. Although Afghan security forces were well funded and equipped, in the event they put up little resistance as Taliban militants seized much of the country as soon as the troops began withdrawing. The Taliban regime that was once toppled in 2001 is now back in power. Moreover, the fall of Kabul came much sooner than expected by U.S. intelligence analysts.

Why are Afghans fleeing?

As militants crowded the streets of Kabul, people have been trying to escape the Taliban rule. Panic has engulfed Kabul as people swarmed the Hamid Karzai International Airport, creating a chaotic and dangerous situation as they tried to board planes to flee the country. This has been driven by fear that the country could descend into chaos, that the Taliban could potentially carry out revenge attacks against individuals who worked for the U.S. or their government, and that the Taliban will reimpose the harsh interpretation of Islamic Sharia Law that they did in 1996.

Amid this crisis, numerous casualties and deaths arose from a terrorist attack on the airport by Islamic State – Kohrasan Province (IS-K) on 26 August, and the following day the U.S. carried out a drone strike said to be based on intelligence of an imminent further threat.

The Taliban have announced they intend to form an “inclusive, Islamic government.” However, this is likely to result in a severe rollback of rights for women particularly. Whilst the Taliban have said that women will be encouraged to work and gain education, most Afghans distrust these words and fear an oppressive rule. The early signs bear out this scepticism. A Taliban spokesman, Zabihullah Mujahid, stated his desire for women to remain at their homes ”for now”  in case they are mistreated by the Taliban fighters. More recently, the Taliban announced that women can attend university, but that there will be no co-education. It is unclear whether there are sufficient female teachers to ensure the provision of proper education for women and girls. Women have been fighting for their right to work and to be included in the government, but the interim administration is entirely made up of men. There have been ongoing protests in Kabul and Herat which the Taliban have targeted with tear gas and pepper spray to control the protests. The Taliban have also been firing warning shots in the air to disperse the crowds.

The Afghan crisis is marked by displacement within the country and abroad. The U.N. High Commissioner for Refugees (UNHCR) declared that nearly 400,000 people have been forced from their since early 2021. This is in addition joined 2.9 million Afghans who already have been displaced across the country by the end of 2020. The UNHCR spokesperson Shabia Mantoo was particularly concerned about the impact of the conflict on women and girls. The UNHCR is calling on countries neighboring Afghanistan to keep their borders open in light of the intensifying crisis in Afghanistan.

Right to Asylum – Legal Framework

The rights of refugees and asylum-seekers are protected by international law, regardless of how and why they arrive in a country. The Universal Declaration of Human Rights (Article 14) states that everyone has the right to seek and enjoy asylum from persecution in other countries. While the European Convention of Human Rights (ECHR) does not explicitly provide for the right to asylum as such, turning away an individual and putting them at risk of torture or other forms of inhuman or degrading treatment or punishment (breaching Article 2 or Article 3) is prohibited by the principle of non-refoulement (the practice of not forcing a person to return to a country in which they are liable to be subjected to persecution), which is itself specifically laid down in Article 33 of the 1951 Refugee Convention. In addition, Article 15 of the Qualification Directive (which has been retained in UK law post-Brexit) provides wider protection, including against returning a civilian who would be at a “serious and individual threat to [their] life or person by reason of indiscriminate violence in situations of international or internal armed conflict.”

In relation to assessing risk upon return, it seems very unlikely that the latest country guidance on returns to Afghanistan in AS (Safety of Kabul) Afghanistan CG [2020] UKUT 130 (IAC) could still be applicable given the vast change in circumstances since that (recent) case was decided.

However, a common feature of these provisions is that they protect persons who have arrived already in the UK.

In response to the escalating crisis in Afghanistan, the UK government announced the new resettlement scheme known as the Afghan Citizens’ Resettlement Scheme (ACRS). In the first year, the ACRS will accommodate up to 5,000 Afghans in the UK, with up to a total of 20,000 in the long-term. The new route is separate from, and in addition to, the Afghan Relocations and Assistance Policy (ARAP), which offers any current or former locally employed staff priority relocation to the UK. The ACRS will prioritise women and girls, and religious and other minorities, who are at a higher risk of suffering human rights abuses. It is modelled on the Syrian vulnerable persons resettlement scheme, which relocated 20,000 Syrian refugees over a seven-year period from 2014 to 2021.

The efficiency and sustainability of UK’s resettlement scheme?

The prime minister stated that UK’s “bespoke scheme” for Afghan refugees is “one of the most generous in our country’s history. But the UK’s response to the unfolding humanitarian crisis has been greeted by significant criticism.

First is the major drawback with the ‘long-term’ implementation of the scheme. The scheme aims to cater to 20,000 people over a long period. However, the number of people in Afghanistan at immediate risk of persecution or serious harm is far greater. Tobias Ellwood, the Conservative MP for Bournemouth East, labelled the scheme as “woefully inadequate”:

The Government really needs to see the bigger picture here and grasp the scale of the crisis we created. We are capping the numbers to 5,000 for the first year, when the threat is at its greatest.

The current population in Afghanistan is approximately 39 million, and this scheme clearly does not meet the gravity of the refugee crisis. Neighboring countries including Pakistan have taken over 1.5 million refugees and Iran has rehabilitated 780,000 refugees. Layla Moran, Liberal Democrat spokesperson for foreign affairs, said that 20,000 refugees should just be “the starting point”. These vulnerable people must be out of the country as soon as possible, instead of a vague promise of a long-term assistance. Therefore, it is fundamental that there is a focus on those at immediate risk without the wait of a longer-term plan which will jeopardise the future of Afghans.

In this regard, even though the Taliban has announced an amnesty for all its adversaries, musicians and artists remain at a high threat. For example, the Taliban have killed an Afghan folk singer, Fawad Andarabi, who was dragged from his home and shot in the head. Shabnam Nasimi, Executive Director of Conservative Friends of Afghanistan, has said that

What is the point of the scheme if in a few months’ time the people that are eligible for that priority list aren’t alive? [the scheme] it fails to understand the political and military reality.

Given the scheme’s insufficient size and scope, Mohammad Hotak, chair of the Afghan Council, warned that Afghans could be forced to use clandestine methods such as small-boat crossings to reach the UK. However, under the new Nationality and Borders Bill, which is making its way through parliament, any Afghans who flee and arrive in Britain by an “irregular route” won’t be welcomed. It will become a criminal offence to knowingly arrive in the UK illegally without permission to be here. This is despite the legal reality that a person who arrives in the UK (even by an irregular route) who meets the criteria for protection must be given protection.

Second, this scheme is instigating confusion. It is unclear whether most people fleeing the Taliban will be able to access it. The UNHCR, which aids refugee resettlement globally said there was “confusion” in the Home Office’s plan. Refugee resettlement can take place only once people have left their country of origin. The vast majority of Afghans who have fled their homes in recent weeks – about 300,000 – are currently displaced within Afghanistan. It is unclear whether they will be able to cross to neighboring countries such as Pakistan and Iran to access the scheme.

Third, there are no future guarantee for refugees who come to the UK. Their futures are far from certain, particularly as the Home Office is reportedly struggling to find suitable accommodation for refugees, many of whom are large families. The recent death of a 5-year-old Afghan boy who fell from a hotel window under the ARAP scheme raised concerns on the safety of the refugees. The provision of basic necessities and safety is crucial for all refugees. More importantly, this scheme must not only reallocate Afghans alone but give them a chance to begin a new life with their families in the UK. Enver Solomon, Chief Executive of the Refugee Council, has called on the Government to expand eligibility for family reunions to allow relatives to join their loved ones in the UK safely.

While the UK’s effort in accommodating Afghan refugees are not to be dismissed, questions have been raised regarding the real efficacy of the scheme. The apparent flaws in the scheme will be put under greater scrutiny when it is officially launched.

Tehreem Sultan is currently studying for the Bar Course.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

Tags


Aarhus Abortion Abu Qatada Abuse Access to justice adoption ALBA Al Qaeda animal rights anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 Artificial Intelligence Asbestos assisted suicide asylum Australia autism benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery Catholicism Chagos Islanders Children children's rights China christianity citizenship civil liberties campaigners climate change clinical negligence Coercion common law confidentiality consent conservation constitution contempt of court Control orders Copyright coronavirus costs Court of Protection crime Cybersecurity Damages data protection death penalty defamation deportation deprivation of liberty Detention disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Court of Justice evidence extradition extraordinary rendition Family Fertility FGM Finance foreign criminals foreign office France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage Gaza genetics Germany Google Grenfell Health HIV home office Housing HRLA human rights Human Rights Act human rights news Huntington's Disease immigration India Indonesia injunction Inquests international law internet Inuit Iran Iraq Ireland Islam Israel Italy IVF Japan Judaism judicial review jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid Leveson Inquiry LGBTQ Rights liability Libel Liberty Libya Lithuania local authorities marriage mental capacity Mental Health military Ministry of Justice modern slavery music Muslim nationality national security NHS Northern Ireland nuclear challenges Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury Piracy Plagiarism planning Poland Police Politics pollution press Prisoners Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia Saudi Arabia Scotland secrecy secret justice sexual offence Sikhism Smoking social media South Africa Spain special advocates Sports Standing statelessness stop and search Strasbourg Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treaty TTIP Turkey UK Ukraine USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wind farms WomenInLaw YearInReview Zimbabwe
%d bloggers like this: