Rights and Rhetoric: The Politics of Asylum and Human Rights Culture in the United Kingdom

DOIhttp://doi.org/10.1111/j.1467-6478.2005.318_1.x
Publication Date01 Mar 2005
AuthorShami Chakrabarti
JOURNAL OF LAW AND SOCIETY
VOLUME 32, NUMBER 1, MARCH 2005
ISSN: 0263-323X, pp. 131±47
Rights and Rhetoric: The Politics of Asylum and Human
Rights Culture in the United Kingdom
Shami Chakrabarti*
No assessment of the state of human rights today could be complete
without some consideration of the situation of asylum seekers and the
political trends behind it. Four years after the implementation of the
1998 Act, asylum seekers are perhaps more denigrated in rhetoric and
harsh practice than they were even before the first promise that rights
would be `brought home' for all `people' in the United Kingdom. This
piece looks at the undermining of the very concept of asylum,
dehumanizing policies such as forced destitution, and attacks on access
to legal process for those making asylum claims. It goes on to consider
judicial attempts at coping with the arena in which high politics and
fundamental rights seem in greatest tension. Finally it considers
potential implications for the broader aspiration of building a human
rights culture in this country.
Freedom-loving people around the world must say . . . I am a refugee in a
crowded boat foundering off the coast of Vietnam. I am a Laotian, a
Cambodian, a Cuban, and a Miskito Indian in Nicaragua.
President Reagan, 5 May 1985, at Bergen-Belsen Concentration Camp.
INTRODUCTION
For the greatest part of fifty years, the 1951 Refugee Convention (`the 1951
Convention')
1
remained a relatively sacrosanct legacy of the horrors of the
131
ßCardiff University Law School 2005, Blackwell Publishing Ltd, 9600 Garsington Road,
Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
* Director, Liberty (The National Council for Civil Liberties), 21 Tabard
Street, London SE1 4LA, England
This essay is dedicated to the late Roger Bingham, Liberty's much loved former Press
Officer who strove for the rights of those seeking asylum in both his professional and
personal life. The priority which the organization now gives to this work owes a great
deal to his influence. Huge thanks also to Mhairi McGhee for her supporting research.
Holocaust and the Second World War. In the United Kingdom, the tradition
of giving refuge to those fleeing persecution can be traced back considerably
further
2
and there seems to have been (at least formal) cross-party consensus
as to the moral case for liberal First World democracies providing asylum
until about the mid 1990s. The principal 1951 Convention obligation
(against `refoulement' or return of refugees), was incorporated into domestic
law well in advance of the Human Rights Act 1998, just as certain European
Convention obligations had been incorporated into the `soft law' of
deportation via a strand of Home Office circulars. Thus it might be argued
that much of our polity and judiciary were first introduced to concepts and
analysis of fundamental human rights via the 1951 notion of asylum.
The Prime Minister's preface to the White Paper, Rights Brought Home,
3
refers to rights recourse for `people in the United Kingdom' rather than only
British nationals or citizens. It goes on to make an express link between
human rights policy at home and abroad. How then is it possible that the
early infancy of the Human Rights Act should be so associated with the
increasing dehumanization of those seeking refuge in the United Kingdom
(for the most part from tyrannous regimes which we deplore), with repeated
attacks on access to legal process, and the very concept of asylum itself? I
suggest that the `politics of asylum' have operated so as to undermine the
developing values and law of human rights in this country. The possible
results are damaging not just for those seeking refuge and other `outsiders' in
society, but for human rights and democratic values in society as a whole.
UNDERMINING THE IDEAL
The UN Convention on Refugees, first introduced in 1951 . . . has started to
show its age. . .
Prime Minister Blair, 27 April 2004,
speaking to the Confederation of British Industry
Dictionary definitions of `refugee' and `asylum' present a positive or at least
neutral picture of a person in flight from war, persecution or natural disaster
and seeking shelter or protection by a receiving state. In our linguistic
heritage, the grounds of flight and protection are even broader than the 1951
legal definition of a person who:
owing to well-founded fear of being persecuted for reasons of race, religion,
nationality, membership of a particular social group or political opinion, is
outside the country of his nationality and is unable, or owing to such fear, is
unwilling to avail himself of the protection of that country . ..
4
132
2 Statutory recognition going back at least as far as the Extradition Act 1870.
3 Home Department, Rights Brought Home: The Human Rights Bill (1997; Cm. 3782).
4 1951 Convention, op. cit., n. 1, Art. 1.
ßCardiff University Law School 2005

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