06/01/2015
As new records are struck for the
Pegida marches, driving immigration further up the political agenda across Europe, we turn our attention to a piece published in
Conservative Home by Owen Paterson â on why Ukip is wrong about immigration.
An election is only just over four months away, he writes, and it is a safe bet to assume that immigration will loom large in the political battle to come â and that victory will go to the party that offers the most convincing solution to the question of how to bring order to the chaos of the present arrangements.
The comments on this are interesting, including an assertion that Paterson is adopting Ukip policy, the claimant apparently unaware that the party he supports has yet to produce anything by way of policy, confining itself â so far â to a list of incoherent aspirations.
Still also we are getting the mantra about "controlling borders", when it is self-evident that, if we are signatories to international agreements that over-ride our controls, then there is no question of exercising anything but partial control over our borders.
And it is here that the incoherence of Ukip shows up the amateurishness of the party and its putative policy-makers. In respect of asylum seekers, for instance, Ukip will,
they tell us, "return to the principles of the UN Convention of Refugees which serves to protect the most vulnerable".
Yet this is a Convention that was drafted in the aftermath of the Second World War and, until the 1967 Protocol, applied only to Europe and then to events occurring before 1 January 1951. Its authors never envisaged the situation in which we find ourselves today, where the nations of Europe are being held to ransom by criminal trafficking gangs exploiting human misery.
In this context, we have to appreciate that the Convention stipulates that, subject to specific exceptions, refugees should not be penalised for their illegal entry or stay. This recognises that the seeking of asylum can require refugees to breach immigration rules. Prohibited penalties include being charged with immigration or criminal offences relating to the seeking of asylum, or being arbitrarily detained purely on the basis of seeking asylum.
Importantly, the Convention also contains various safeguards against the expulsion of refugees. The principle of
non refoulement is so fundamental that no reservations or derogations may be made to it. It provides that no one shall expel or return (
refouler) a refugee against his or her will, in any manner whatsoever, to a territory where he or she fears threats to life or freedom.
What this means in practice is that asylum seekers can be complicit in the criminal acts perpetrated by traffickers â not least by paying them to access the territories of EU member states â without fear of penalty.
Thus, of the hundreds of thousands of illegal immigrants who have passed through the UK system,
as at 30 September 2014, only 3,378 people are currently detained, and thence only in immigration removal centres, short
term holding facilities and pre departure accommodation.
If we are to restore any element of control to our borders, therefore, we are going to have to restore criminal penalties to criminal behaviour. After all, in a very real sense, asylum seeking is institutionalised queue-jumping.
Compare, for instance, the misery and trauma of an existence in a refuge camp on the Syrian border with the relative warmth and comfort, and absolute safety, of a billet in a British reception centre. Even though those accommodations are far from ideal, they are a world away from a tent on a windswept hill, in the freezing conditions of a Turkish winter.
What, in effect, we have to do is make conditions for asylum seekers no better than they are in the refugee camps on the spot â which argues for two things. We must divert money from the queue-jumpers, who have tens of thousands spent on them, to those in poorer conditions and who are lucky if they get hundreds spent on them.
Then, those who do attempt to jump the queues should either be returned, or if that is not safe, detained â so that they do not benefit from their "crimes". Alongside this, there must be a complete rethink of the very fundamentals of the law relating to asylum seekers â those seeking protection as
bona fide refugees.
As it stands, the 1951 UN Convention (and the accompanying Universal Declaration of Human Rights) is translated into EU law, the EU Charter of Fundamental Rights provides for the right to asylum in Article 18 and the prohibition of
refoulement in Article 19.
Article 78 of the TFEU provides for the creation of a Common European Asylum System which must respect States' obligations under the 1951 Geneva Convention. Several legislative instruments have been adopted to implement this provision. They also reflect the protection from
refoulement contained in Article 33 of the 1951 Geneva Convention.
However, although Article 18 of the Charter guarantees the right to asylum, EU law does not provide for ways to facilitate the arrival of asylum seekers. Individuals who wish to seek asylum in the EU are primarily nationals of countries requiring a visa to enter the EU. As these individuals often do not qualify for an ordinary visa, many of them are forced to cross the border in an "irregular" manner.
In other words, although EU law gives third country nationals rights of asylum, they effectively have to break the law by entering the territories of EU Member States illegally, in order to exercise those rights.
What then happens is that Member States with the acquiescence of EU institutions and the physical support of Frontex, the EU's border agency, have adopted a wide range of measures that serve to disrupt or act as a barrier to the movement of people seeking to invoke asylum rights.
These measures range from physical barriers such as high security fences, restrictive visa requirements, sanctions on carriers responsible for irregular entry of third country nationals and readmission agreements, to "softer" instruments such as the posting of immigration liaison officers in main countries of origin and transit or the launch of information campaigns in third countries aiming at deterring potential migrants.
All of such measures interfere with the right to seek and enjoy asylum, so the whole issue of asylum seeking becomes a grotesque game, whereby the asylum seekers have to devise new and more imaginative ways of exercising their rights, while the authorities of Member States devise new and more imaginative ways of stopping them from so doing.
The system, therefore, is built on hypocrisy and illusion, where law-breaking is encouraged and incentivised, where thousands of people die while attempting to exercise rights given them, but then withheld, while the collective systems spend billions achieving little, and spreading dissatisfaction amongst all those who are affected by it.
And so we have the Pegida marches in Germany and the rise of Ukip in the UK â neither having any serious impact on the nature of the problems.
Owen Paterson writes that Ukip's policy of simply "leaving the EU" is nothing but a populist slogan. Implementing an intelligent policy of managed immigration will require guts, determination and attention to detail. The colourful characters running Ukip may have added to the gaiety of the nation during the festive season, he adds. But only a resolute Conservative government with a good working majority can begin to address these issues.
Would, of course, that there was a "resolute Conservative government" on offer, but the likelihood of us moulding Tory MPs into some sort of shape is probably higher than ever getting anything sensible out of the incompetents who are in charge of Ukip's train-wreck pseudo-policies.
In the end, though, it is the people who are going to have to make the running, and come up with the ideas. Fundamental change always comes from outside the political system â the people lead, and the politicians follow. Therefore, if we want a "resolute Conservative government", somehow, we're going to have to make it happen.
