Why denying citizenship to refugees matters so much

The new Home Office policy permanently to deny citizenship to refugees is a terrible, appalling one. I thought it would be useful to explain why I think that. There has been a lot of focus on the argument that it breaches the Refugee Convention. That, um, might be my fault. That’s important in some ways but, to be frank, it misses the main point.

And the main point is really important. It’s about equality, dignity, security, integration and… economic growth. Well, it’s not directly about economic growth. It’s about empowering and enabling people to live fulfilling lives. One side-effect of which is economic growth. Because people who are discriminated against, dehumanised, precarious and marginalised cannot be all that they might be. They are more likely to be poor, as are their children. It is much harder for them to get good jobs or advance in their careers. It’s not just bad for them but bad for the economy and society of which they are part. Right on cue, a report just last week revealed that, unsurprisingly, a third of children living in destitution were from migrant families.

Given the government will shortly be publishing a white paper on authorised immigration and citizenship might feature in it, now is a particularly important time to be making these points.

For me personally, this whole refugee citizenship ban debacle has been a tipping point.

There is a lot of political stuff I disagree with, sometimes very strongly, which I am willing to tolerate on some level. No government will ever do everything one wants. Every political party that aspires to hold power must to appeal to a broad electoral coalition. I was sort of expecting the new government to pull some offensive, inhumane stunts like the videos of deportations. I think you’re pretty sick if you video someone being arrested, detained and bundled onto a plane. It denies basic dignity, basic humanity to that person. It treats the person as a type, a category. Nevertheless, to my shame, I was willing to live with it.

But not so with a permanent ban on citizenship for refugees. This, I had not expected or ‘priced in’.

It is a betrayal of the fundamental principle of equality. It says to refugees “you can never be equal, you will always be less than the rest of us”. No matter how long they live in our country, they can never be one of us. It is the ultimate anti-integration measure.

That is exactly what some people already believe. Far right rioters last summer, for example. They believe that refugees should not and indeed cannot be British. A Labour government — a Labour government — has just introduced a policy that gives effect to exactly that thinking.

And that is why this policy is so wrong. Not because it breaches international law. Not because it will, in my view, probably be struck down in the domestic courts; read to the end for a few thoughts on that. But because it is morally wrong. It is wrong to treat refugees that way. It is a handicap deliberately and totally unnecessarily imposed on them and therefore also on their children.

All that said, it is also important that a government complies with the law. Liberal democracy is founded on this principle. There’s a danger we’re going to see what happens over in the United States when the principle is violated.

So, adherence to international law is virtuous and right for its own sake. It recognises that there’s a system of law governing the behaviour of states, that the United Kingdom as a state has signed up to obligations and that it should, as a matter of principle, stick to them.

There are other underlying reasons why the adherence to international laws is sensible. In short, there are very good reasons those laws were agreed and the United Kingdom as a state signed up to them. It’s not about asserting merely “it’s against the law”, it’s about understanding why that’s the law in the first place.

It is in the United Kingdom’s own long-term self-interest to adhere to international laws. Borders have two sides. If other countries think that we will breach our international legal obligations, they will not trust us. In the sphere of immigration and asylum law and policy, the UK would love a returns deal with the European Union. That’s hard to get if the UK breaches the international regime for the protection of refugees and undercuts minimum agreed standards in order to deter refugees. Other states will be anxious that they are being out-competed in the race to be most horrible to refugees. This was one of the key reasons the Refugee Convention was agreed in the first place: to set out minimum standards for the treatment of refugees.

In this way, international law can act as a guardrail. It exists for the purpose of preventing nation states doing things which violate basic internationally-recognised and agreed common principles, particularly to unpopular minority groups.

The Rwanda Plan is a good example. It always seemed to me unsustainable because the reasons lots of us objected to it would manifest in real life. Large detention camps would have to be built. Refugees would be serious injured in the process of removal, as would guards. Suicides would be likely during that process and, in any event, after removal to Rwanda occurred. Protests by removed refugees in Rwanda seemed likely. None of that was going to end well. There would, eventually, be very negative press coverage. Most people would be revolted by the consequences of enacting the plan. And the government would be forced to stop. But many people would have been harmed before that happened.

The ban on refugees becoming citizens is less dramatic. But there’s a reason why the Refugee Convention requires state parties to facilitate the assimilation and naturalisation of refugees. It’s because it is one of the four possible outcomes to a claim for asylum:

1. Rejection and return to the country of origin.

2. Resettlement to a third country.

3. Temporary residence and then reintegration to the country of origin once it is safe.

4. Permanent residence in the country of asylum.

Options 1 and 2 are implicit in the text and purpose of the convention; they are not prohibited. Option 3 is recognised in Article 1C of the convention, which makes it explicit that refugees status can be revoked where a person can safely return to their own country. Option 4 has no time limit but it exists because refugees cannot be left waiting with the Sword of Damocles — option 3 — constantly hanging over them for the rest of their lives.

The drafters of the Refugee Convention thought it through. They did not give many rights to refugees, but they gave them some. This was one of them.

The drafters of the new policy to deny citizenship to refugees did not think it through. They did it for short-term political gain without worrying about “not like us” signal that it sends not just to refugees but also to existing British citizens. They did not consider why refugees should be allowed to become citizens.

The policy springs from a Home Office institutional mindset. The Home Office attaches no real significance to British citizenship. It is just a form of immigration status as far as the institution is concerned, and a revocable one at that. The institutional response to the “fuss” — as they will see it — over refugee citizenship is that it’s no big deal, refugees will still have settled status, what are they complaining about, they don’t need citizenship anyway.

First of all, no-one can just launch a legal action saying that the policy breaches the Refugee Convention. The Refugee Convention is not part of UK law and without being part of UK law it cannot be litigated in that way. It’s quite clearly a breach of the Refugee Convention and international law, but it’s not directly enforceable.

It is very hard successfully to challenge the Home Secretary’s decisions on the good character test in the British Nationality Act. Parliament is considered to have given the Home Secretary considerable discretion to interpret what that term means.

It is not an unlimited discretion, though. The interpretation must be capable of being borne by the plain meaning of the words.

I would have thought a judge would be very interested in considering whether a person’s mode of entry to the United Kingdom several years previously is genuinely relevant to whether they are of “good character”. How exactly is one’s mode of entry to the country a reflection of one’s character?

And a different clause of the Refugee Convention might be very relevant here. Is the Home Secretary’s interpretation of “good character” really a reasonable one within the ordinary meaning of the words, particularly given an international convention permits a refugee’s illegal entry in certain circumstances and prohibits a state from penalising them for that mode of entry?

Article 31(1) of the Refugee Convention says this:

The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

So, there’s one main argument, which is that using mode of entry to define good character for the rest of a person’s life is not a rational or reasonable interpretation of the words chosen by parliament.

And there’s a supporting argument, which is that this is particularly so for refugees given that a permanent ban on citizenship is surely a penalty and states are not supposed to impose penalties for that reason. It might also help somewhat to point out that states are actually supposed to facilitate naturalisation, in fact.

I would have thought there are pretty good prospects of success in a legal challenge to this policy. But that will take months or years. The government should reconsider and withdraw the policy.