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Chapter 2

‘You have no idea of the cost of forged documents, Mr Latimer. There used to be three recognised sources of supply: one in Zurich, one in Amsterdam and one in Brussels … You used to be able to get a false-real Danish passport – that is, a real Danish passport treated chemically to remove the original entries and photograph and then filled in with new ones – for, let me see, about two thousand francs at the present rate of exchange. A real-false – manufactured from start to finish by the agent – would have cost you a little less, say fifteen hundred. Nowadays you would have to pay twice as much. Most of the business is done here in Paris now. It is the refugees, of course.’

Eric Ambler, The Mask of Demetrios

The central international instrument designed to protect refugees is the Convention of 1951 (it was extended beyond its original geographical limitation to Europe by a Protocol in 1967). The definition of a refugee is to be found in Chapter 1, Article 1, which states that the Convention shall apply to anyone outside ‘the country of his nationality’ as a result of a ‘well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion and is unable or, owing to such fear, unwilling to avail himself of the protection of that country’. The question is how a contracting party goes about the business of interpretation. The wording of Chapter 1, Article 1 might be taken to mean that only persecution by a state makes an applicant eligible for ‘Convention status’. This would rule out persecution by a warlord or a rebel insurgency and so, for example, hundreds of thousands of Angolans who lived in terror of Jonas Savimbi’s Unita movement during the 1980s would not have qualified for Convention status, though followers of Unita – largely drawn from one ‘ethnicity’ (indeed, one ‘social group’) – who were threatened with retribution by the Angolan Army, might well. Again, an Algerian journalist who feared for her life at the hands of the Groupe Islamique Armé would be less likely to qualify than someone who was known to have voted ‘Islamic’ in the early 1990s and was at risk of summary justice from state paramilitaries.

These are extreme examples, but the notion that state persecution alone defines a Convention refugee predominated in France and Germany during the last part of the twentieth century. Other countries, such as Canada, the UK and Ireland, have taken the broader view that Convention status should apply to people whom a state is unable to protect – which would mean not only that the potential victim of a Unita atrocity in Angola and an Algerian journalist were eligible, but that a victim of sexual harassment or domestic violence might become a Convention refugee. (Canada has given Convention status to Chinese families as a result of the ‘one child only’ policy.) And it could well be, according to a signatory’s interpretation, that the term ‘social group’ covers broad minorities such as gays, or women under attack by a particular regime – the Taliban, for instance, before the invasion of Afghanistan and most probably in the future, after the US/Nato withdrawal. In Britain, the Home Office has been forced by the courts to consider women fleeing persecution under customary marriage laws as plausible asylum seekers.

Interpretations of the Convention reflect the political priorities of signatory states. Above all, they give an indication of how a state views immigration in general. A country such as Canada, with a more obvious use for migration than a country like Britain, is likely to take a more generous view of asylum. The real effects of this difference are remarkable. In 1996, Canada decided that 76 per cent of applicants from the Democratic Republic of Congo (Zaire at the time), 81 per cent from Somalia and 82 per cent from Sri Lanka qualified for Convention status. In the same year in Britain, only 1 per cent of applicants from Zaire, 0.4 per cent from Somalia and 0.2 per cent from Sri Lanka were considered eligible.

In Europe in the 1990s, governments were awarding other kinds of status to those they felt were endangered but did not qualify as Convention refugees. Often these dispensations were underpinned by international instruments such as the UN Convention against Torture – Article 3 in particular, which stipulates that no one should be returned to a state ‘where there are substantial grounds for believing that he would be in danger of being subjected to torture’ – and the European Convention on Human Rights, Article 3 of which states that ‘no one shall be subjected to torture or to inhuman or degrading treatment or punishment.’ Since 9/11 the West’s widespread use of torture and rendition has turned the clock back: Britain and the US are now countries which inflict or subcontract torture in the name of national security, as France did in Algeria during the 1950s or Syria does in 2012. Nonetheless ‘humanitarian grounds’ are often judged sufficient for permission to stay in a country; sometimes – as in Austria and Germany during the 1990s – asylum seekers are simply left with no status at all: they have been refused leave to remain, but to send them back would contravene Article 3 of the European Convention.

In Britain, ‘exceptional leave to remain’ is granted at the discretion of the Home Office. It is an inconsistent, opaque and unreliable award, and because it is discretionary, there is very little argument to be had about it. It is nonetheless a means of extending some sort of sanctuary to refugees who are refused Convention status. Although Britain withheld that status from 99.6 per cent of the Somalis who requested it in 1996, 93 per cent were given exceptional leave to remain. In practice, Convention status has tended to entail the right of permanent residence in host states.

Some people believe the Convention is obsolete in any case. ‘The present arrangements,’ the conservative columnist Bruce Anderson wrote in the Spectator in 1999, ‘commit us to obligations which we can never meet, so they ought to be repudiated.’ He reckoned an annual quota of fifty asylum seekers to be a manageable intake for Britain – in a year when 71,000 fetched up – provided there were interim measures to deal with cases such as ‘the plight of Jews in the 1930s, the Hungarians after the 1956 Uprising and the Ugandan Asians’. These are the arguments of the canny shirker, who knows what work he can afford to turn down: adhere to the bare minimum of the Convention when it suits you, spit on the sidewalk when it doesn’t. (In 2010 Anderson advocated the torture of wives and children of suspected terrorists.) Yet his objections to the Convention pinpoint an abiding weakness: it was drawn up as the Cold War got under way, and quickly began to serve the West’s purposes in the conduct of that war.

The Communist regimes were quick to bridle at the Convention, and by 1965 the US had amended its Immigration and Nationality Act to grant Convention status to almost anyone coming from a communist country. In the absence of Cold War imperatives, the liberal adherence of Western signatories to the terms of the Convention is, with some exceptions, waning fast. In its place are ‘temporary protection’, exceptional leave to remain, ‘humanitarian’ leave, ‘de facto refugee’ status, ‘Duldung’ (or ‘tolerated status’) and other forms of halfway house. There is less international political advantage nowadays in accommodating refugees. Far fewer of the people who wish to claim asylum are anticommunists in any useful sense, even if they come from the remains of the Eastern bloc or China. As for domestic political advantage, there is none. Many asylum seekers, if they could get in, would be black; a proportion coming from the east into Western Europe are Roma. Most electorates in the rich world have set their hearts against that kind of influx.