Migrant community organisations have often found it difficult to get a fair hearing from mainstream British civil society. Because of this the law has had to do a lot of the heavy lifting. In this important new account of the legal fight for migrant rights, Frances Webber explains why the critical role of committed lawyers needs to be acknowledged, and why it will continue to be central in the years to come.
For most of the past four decades the main arena in which the fight for the rights of migrants has been waged has been through the immigration appeal system and the law courts. Frances Webber’s new book, Borderline Justice – The Fights for Refugee and Migrant Rights, does us the great service of providing a thoroughly readable history of these battles, drawing out their larger significance for civil liberties, human rights, and the way Britain is coming to be governed.
The author has been a frontline participant in these legal battles for thirty years, working as a barrister from the leading immigration and human rights chambers, Garden Court. The recall of the arguments that were put to the tribunals and courts, covering such issues as asylum and refugee status, family reunification and the internal controls now bound up in the workplace and in university regulations, are penetratingly exact – no doubt having the advantage of both her own and her colleague’s case notes to draw on.
But Webber writes primarily for a non-legal audience, attempting to indicate the direction which is being taken in the political and state administration life in the UK, increasingly intolerant of arguments that a duty of welfare is owed to its populations, and very least of all to those who, though they might have lived, laboured and paid taxes for years, are still marked by the stigma of having once been a migrant.
Attacking asylum rights
Her discussion of the way asylum law, and the duty to provide for the needs of vulnerable people who have fled from persecution, provides a strong case supporting the points she seeks to make. During the years after the UN Convention on Refugees had been adopted, in 1951, the UK had acknowledged the humanitarian intent behind the measure and operated a system which, in the main, took the facts and realities of refugee flight into account and granted protection accordingly.
This began to change from the late 1980s onwards as refugee movements were increasingly configured by the post-Cold War world of collapsing authoritarian regimes and the new phenomenon of failed states. Despite the fact that suffering, persecution, victimisation, murder and mayhem were rife in these situations, the political line taken by the UK state that they did not constitute the sort of circumstances in which refugee protection was required to be granted. The general turmoil which provoked forced migration did not generate the element of ‘special groups’ singled out for persecution which the UK government argued was necessary to qualify as a refugee.
The UK state authorities originally sought to deal with the new situation by the introduction of harsh reception procedures intended to ‘send the message’ to people considering flight to the UK that they would not be made welcome. The Conservative government in the 1990s ended asylum seeker entitlement to mainstream welfare benefits; Labour following up after 1997 with the instruction of compulsory dispersal and a cashless system of supermarket vouchers.
The propensity to detain refugees was also extended during this time, with the immigration prison estate expanding to a capacity of 4000 places at any time. Webber describes how lawyers increasingly found themselves dealing with the evidence of appalling levels of destitution amongst their clients, alongside all the battles to get people out of removal centres who were there for no better reason that it being convenient to the immigration authorities. Yet the fact that legal activity was increasingly moving onto the terrain of welfare concerns and the right to liberty had the effect of moving the law on the rights of migrants onto the terrain of basic human rights.
Human rights law has proven to be both fruitful as far as challenges to executive power is concerned, but also politically controversial. As judges found themselves being obliged to rule against the Home Office on issues like indefinite detention and the obligation on public bodies to act to relieve the direst forms of destitution, government ministers opened up a new front which was to be waged in the headlines of the tabloid press, condemning the judiciary for challenging the authority of Parliamentary democracy. All the talk of hope for a new ‘human rights culture’ emerging from the much-lauded 1998 Human Rights Act was dropped during the course of the following years as Home Secretaries and Justice Ministers opening speculated that things had gone too far in the direction of human rights.
Family life
Other battles were waged during these years. The chapter on the fight for family life is particularly strong, linking what was positively achieved for a brief time in the late 1990s and early 00s to the campaigning work of divided families campaigns and the stratagems of the lawyers who supported them. Webber acknowledges at every point the deep roots for the legal struggles in which she was involved in the prior work of migrant communities and their supporters in local communities who were not prepared to roll over as state authorities bulked up to challenge their rights.
So where has all this history brought us, and what can we expect in the future? Perhaps the most obvious fact is that throughout this period government has always known that it was unlikely to obtain what it wanted from immigration policy solely on be basis of the quality of its legal arguments. As the courts showed they were inclined to back arguments which indicted procedural unfairness and poor quality decisions, ministers have made it clear that what is required is nothing less than a change in the legal procedures themselves.
This has been what has been delivered by both the Labour and coalition governments. Appeal hearings have been transformed by the construction of new tiers intended to usurp some of the functions of the higher courts in terms of their judicial oversight. Judicial review remains a potent weapon however, which is the reason why David Cameron has announced his intention to encumber it with tight, unrealistic, deadlines for lodging applications and the risk of greater costs falling on applicants. Meanwhile legal aid for immigration has been choked off for years, with the expectation that from April onwards it will be finally ended for anything other than asylum appeals.
But Webber’s book at least gives you confidence that committed immigration lawyers still exist in sufficient numbers to upset government plans to squeeze considerations of human rights out the system. The effect of the system becoming sparser and poorer in terms of the resources to fight cases will mean that the links between lawyers and grassroots campaigns will need to become closer and more organic as the best use is made of the capacity of communities to fight for their rights. Perhaps the discussions we will need to have to get these more streamlined operations underway will begin with every migrant and refugee support group across the UK getting hold of a copy of this book, and thoroughly learning its lessons.