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Demography is Destiny

What duty of care do we have towards illegal migrants?

What duty of care do we have towards illegal migrants?

by Barend Vlaardingerbroek | August 16, 2019

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Refugees arriving in Greece from Turkey

 Immigration is one of the most difficult issues of our times. As part of our focus on demography, we are presenting various perspectives on the debate. From Lebanon, Barend Vlaardingerbroek asks whether all refugees are really refugees. 

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You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.   – Lord Atkin on the duty of care, 1932

Woops, I’ve used a politically incorrect term already – ‘illegal migrants’. There are various euphemisms being bandied about but I’ll stick to calling a spade a spade. Besides, Article 31 of the Refugee Convention 1951 appears to recognise the illegal status of some migrants claiming to be refugees where it mentions “illegal entry or presence” into or in a country.

It was back in 2015 that I started developing a funny feeling that we in the West have been losing the plot concerning refugees/asylum seekers (I shall treat the terms as synonymous) when a BBC report followed some Middle Eastern migrants across Europe. They homed in on one suave and sophisticated young lady who was travelling by rail and staying in hotels. Her family in Syria had been wiped out, she said, and she was on the way to Germany where she had relatives.

On another occasion, the BBC interviewed men encamped at ‘The Jungle’ in Calais who were intent on making it to the UK either by boat or by stowing away on lorries making the channel crossing by ferry. They were adamant that they were all 17 years of age.

But what really did it for me was the case of Rahaf al-Qunun earlier this year. This 18-year-old from an affluent family in Saudi Arabia did a bunk while the family were on holiday in Kuwait, flying to Bangkok where she got on social media and told the world (in fluent English, of course) that she had renounced Islam and that her life was now in mortal danger. Days later, she was greeted at Toronto International Airport by a beaming Canadian Foreign Minister as a poke in the eye for the Saudis in the wake of a spat over women’s rights in the Kingdom.

The definition of ‘refugee/asylum seeker’ in common usage seems to have undergone significant expansion over the years from people escaping persecution, war and genocide to people who simply want a better life than their home countries are giving them. There is even a Trumpian neologism to describe the places most of these opportunists are getting away from: “shithole countries”. Cries of ‘racist’ reverberated around the world. But the first people to agree with Trump would be those who risk life and limb to get out of those stinking cesspits of governmental incompetence and corruption and crime – maybe they’re racists too?

The world was shocked by the recent image of the bodies of a man and his 23-month-old daughter who had drowned in the Rio Grande while en [illegal] route to the US. Images like that, and of people being fished out of the Mediterranean, are intended to make us in the West feel guilty and throw open our doors. Should we?

The Law of the Sea requires that a vessel assists another vessel in distress. Specifically, Article 98 says that “the master must … render assistance to any person found at sea in danger of being lost”, adding that he should “proceed with all possible speed to the rescue of persons in distress, … in so far as such action may reasonably be expected of him”.

‘Rendering assistance’ may range from getting the stricken vessel moving again under its own steam or topping up food and water supplies to taking the ship’s company on board and transporting them to a safe port as a last resort. (The Tampa Incident in 2001 saw the relevant SOLAS regulation amended to make this the nearest safe port.) But is it ‘reasonable’ to expect a captain to deviate from course to pick up a bunch of illegal migrants who knowingly and willingly put their lives in peril by taking to sea in glorified inflatable mattresses in the expectation of being ‘rescued’ and taken to a European port? It’s a debatable point, but the duty of care alluded to certainly does not cover crowds like Sea Watch and MSF who scour the sea looking for those desperados – encouraging them, in fact, to act with such recklessness.

Australia bucked the trend set by Germany (“Welcome illegals, come in and make yourselves at home!”) by ensuring that the boats didn’t make it into their territorial waters. An aspect of the Law of the Sea not widely known is that there is a ‘contiguous zone’ between 12 and 24 nautical miles from the shore or baselines in which the coastal state can prevent infringements of its immigration laws (and other laws, such as those pertaining to smuggling). If feasible, boats intercepted would be given assistance with regard to seaworthiness and adequacy of supplies, and sent (towed if necessary) back out into the high seas; if not, those on board would be transported to an off-shore detention centre or to Papua New Guinea.

It contravenes international law to return would-be asylum seekers to a country where they will face ill-treatment (see Saadi v Italy, ECtHR 2008). Conditions in Libyan detention centres probably do amount to ill treatment. But most of the people in them are not Libyan nationals – they hail from other countries and entered Libya illegally. A Nigerian illegal migrant picked up in the Med could and should be returned to Nigeria, not to Libya.

Let’s get a couple of things dead straight. First, most ‘refugees’ are not ‘refugees’ at all – they are people who want a better life in the West than the one that their own (insert Trumpian neologism) offer them. These are people making conscious choices in the course of which they culpably expose themselves – and, in some instances, their dependents, such as the fellow with the little daughter – to danger with a view to ultimate personal material betterment.

Secondly, while there is a right to apply for asylum, that does not place any obligation on receiving states to confer refugee status. The Convention places the onus on illegal migrants to prove that they are genuine refugees. They must “present themselves without delay to the authorities and show good cause for their illegal entry or presence.” While their claims are being processed, their movements can be restricted “until their status in the country is regularised or they obtain admission into another country”. An interesting addendum here is that the Convention allows a receiving country to move illegal immigrants on without this due process should those be perceived as presenting a security threat.

I put it to you that our duty of care towards illegal migrants involves ensuring their physical well-being while processing their applications for refugee status, and seeing those who are declined safely onto a home-bound ship or aircraft – no more. As for the criteria to be applied, let’s stick to the ones international law prescribes. Poverty, corruption and crime in the home country, while lamentable, are not grounds for asylum status. (And being female in a Muslim country certainly isn’t.) The strict application of the existing rules  would see almost all of the ‘refugees’ crossing the Med or hiking across Eastern Europe sent back home.

I would moreover argue that there is, or should be, no automatic right to be granted citizenship of a receiving country even where asylum status is granted. International law pertaining to refugees reflects a bygone era in which there had been mass displacements of people brought about by the collapse of empires and the shifting of national borders. We need to update the mindset. I for one see no reason why even genuine refugees should be on track for citizenship – they should be sent home once the reasons for their leaving their countries have subsided. An illegal immigrant who has been granted asylum should have to jump the same hurdles as would-be legal immigrants when it comes to applying for permanent residence and/or citizenship.  

One may be forgiven for wondering what is going on in the heads of the characters running ‘rescue’ operations that aid and abet illegal migration and people-smuggling, and meet illegal immigrants from countries where there are no wars or pogroms carrying banners saying ‘Migrants welcome’ and the like. My personal view is that it’s all part of the ‘culture wars’ and that their strings are being pulled by ideologues intent on the destruction of Western civilisation. But that is another story.

Barend Vlaardingerbroek BA BSc BEdSt PGDipLaws MAppSc PhD is at the American University of Beirut. He has lived much of his life in developing countries.

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