Immigration is a National Choice not an International Law
On 18 January, Britain agreed to pay France to improve its border at Calais and to transfer more migrants. The British government promised that this new deal would contribute to its long-standing policy to reduce immigration, and would not encourage new migrants, but a surge of new arrivals was evident in the following week.
The reaction from the British was consternation. Who can blame them? For decades, successive British governments have promised to reduce immigration, failed, and hidden behind international complexities.
In fact, Britain keeps capitulating to France more for domestic and bilateral political reasons than international obligations. The French government is practicing a form of extortion, quietly ignoring its obligations while loudly drawing attention to Britain’s. The British government prefers the domestic political risks of colluding than challenging false understandings of international law.
Pushing the government in this direction are lobbyists who pose as experts – such as the self-titled advocates or “helpers” of “refugees” at Calais, who criticize the British government as “reprehensible in its duty of care towards people it is supposed to help.”
Such a statement betrays ignorance of international law, but such ignorance is at the centre of government. For instance, the Home Affairs Committee took “expert” advice from lobbyists “Hope Not Hate” before recommending that the government should scrap plans to reduce immigration.
False characterizations are perpetuated by journalists, luvvies, and other members of the articulate classes whose activism tends to outpace their expertise. The BBC used the word “refugee” to describe anybody traveling across Europe during the surge of 2015; in 2016, it conceded to call them migrants, but defined a migrant as an asylum seeker. Again, this proves ignorance.
In law, a refugee is outside their country of nationality for fear of persecution – they achieve that status legally by filing for asylum. The international laws on asylum oblige seekers to claim asylum in the first country they enter after fleeing persecution at home. If they move on without filing or waiting for adjudication, they become migrants. The subjects in France have no right to claim asylum in Britain, unless France denies asylum and they move to Britain thereafter. If the subjects at Calais were refugees, the responsible state is France, or the prior country of landing, not Britain; France has not processed them as refugees, so they have no legal status as refugees; to refer to them as refugees is assumptive, and ignorant of the historically-derived expectation that most of them never achieve that status.
Most have no right to claim asylum in France either, because most landed in other countries before moving to France. To claim asylum falsely is unfair to the governments who face the burden of processing that claim unnecessarily, on the taxpayers who fund the governments, the residents who face new competition for resources and services, and the genuine asylum-seekers for whom less support is left over.
The articulate classes simply ignore or deny these facts. I hate to pick on the BBC’s amiable John Pienaar, but he proved the BBC’s reputation when he answered the title of his blog “Why getting on well with France matters” by writing, “Border co-operation at Calais matters to both countries, obviously.”
British lobbyists, journalists, and politicians fly in the face of public opinion. An unusually large majority want to reduce immigration. The ordinary person instinctively realizes that something is wrong when Britain is responsible for helping people in France who are neither British nor French and have migrated in expensive and illegitimate ways that don’t look like a flight from persecution.
Immigration is not a right
Advocates for refugees have turned the asylum system into an immigration system by characterizing all migrants as asylum-seekers, and by characterizing borders, passports, and background checks and anything short of open borders as frustrations of international law. Such advocates again prove their ignorance of international law.
Here’s a fact that would shock them all: nobody has any right to immigrate under international law. Individual countries typically legislate immigration rights for foreigners with certain familial connections or religious or ethnic heritage. Indeed, the Franco-British deal again prioritizes migrants with family in Britain, but such legislation has nothing to do with international law. International law aims to keep families together during their flight from persecution, it does not aim to reunite them. When British justices rule that the British government must admit a nephew of a British resident, they are advancing a social agenda without international legal justification.
Given that international law covers asylum-seekers but not immigrants, asylum-seekers are not immigrants under international law. They have no “right to remain” under international law. The original system aims for them to receive protection in a neighbouring country until they can safely return home.
The “right to remain” that British judges keep invoking is not derived from international law or any legislation passed in Parliament – the closest legal justification is the EU’s principle of free movement; otherwise, it is a construct, habituated by jurisprudence, driven by a social agenda.
British courts and the European Court of Justice have created a system where anybody can enter and nobody can be deported, as long as they pose as a “refugee.” More than two-thirds of asylum applications to Britain from 2015 to 2017 involved claims of sexual persecution, which are impossible to deny, given that the ECJ has repeatedly ruled that asking questions is a violation of privacy. Most Sudanese claim asylum from military conscription – but they earn a status that was designed to save Jews from Nazi genocide.
Even when the entrance or the claim is illegitimate, British courts have erred to accommodation. For instance, from 2003 to 2006, different courts progressively invoked different human rights in order to overturn the criminal convictions and to allow the immigration of nine Afghan men who arrived in Britain by hijacking a plane. In December 2017, Supreme Justices ruled against the government’s attempt to deport two fake asylum-seekers who absconded from criminal justice in Albania by posing as Kosovan refugees, before committing crimes in Britain and changing their identity; the justices accepted their defense that lying about their identity was insufficient to deny them British citizenship. In fact, one of the few reasons that international law allows for deporting an asylum seeker is a fraudulent claim. British justices are defying international law with false interpretations, which become precedent and which justify repeating the erroneous judgments.
Britain’s unfair burdens
You might be wondering: why international lawyers do not point this out? Here’s one of those insights that staggers laypersons: almost nobody who works in international law is a lawyer. International law is handled mostly by politicians, civil servants, political scientists, and advocates for social justice, because international law is really a set of political agreements that are treated as suggestions or prescriptions.
Next, you might be wondering: why don’t the aggrieved governments appeal to international law, or prosecute governments that don’t comply? Almost no international law is legislated in any binding sense with a specified jurisdiction, investigator, enforcer, or court. Most international laws are voluntary agreements between countries, who then voluntarily comply, or not.
Western governments tend to comply because of domestic political pressure through liberal democratic systems. No international judicial system exists to force other governments to follow suit. Consequently, Western governments are carrying most of the burden.
Members of the European Union are most exposed because of the reinforcing legislation passed by the European parliament and adjudicated by the European Court of Justice. The system doesn’t work practically, so members reach bilateral agreements or even defect unilaterally, but Britain tends to be most compliant because of domestic political pressure.
You don’t need to be an expert to realize the contradictions between the new British-French border agreement of January 2018, an almost identical arrangement that was made in 2003, the many renegotiations between 2003 and 2018 (although the two governments marketed this new agreement falsely as their first since 2003), the EU’s various laws and agreements covering internal responsibilities for asylum (known as the Dublin Regulation, signed in 1990), the EU’s abolition of borders between member countries (starting in 1985 with the Schengen agreement), and the prior international law that everybody still invokes.
This ugly mess of legal devices is most disadvantageous to Britain, since migrants can land in the EU without being forced to follow the rules, travel across open borders to Britain, then invoke European and British accommodations that almost no other country honours. British lawyers are in the habit of appealing to the ECJ, and British justices are in the habit of deferring to EU law. Consider that the British High Court ruled that Britain would be discriminating against EU citizens if it deported EU citizens for sleeping on the streets (a violation of the principle of freedom of movement) – their circular argument cannot be explained in law (or logic); it comes from a politicized agenda.
Other members of the EU facilitate the movement of migrants to Britain, selfishly but rationally. The EU puts Greece’s membership of the Eurozone ahead of Greece’s obligations to process migrants there. Similarly, the EU has thrown nothing but idle threats against Hungary, which unilaterally closed its borders to migrants.
Ruining the international system
Countries that do not have borders on the countries that generate refugees, and are not swayed by lobbyists, do not need – in any legal sense – to handle an asylum-seeker. That’s why China, Japan, and Australia are lawfully refusing any migrants who make their own way, although they may accept asylum-seekers direct from source, as a gesture of international burden-sharing. Again, critics who claim that these countries are contravening international law are themselves ignorant of international law – and some of these critics work for the United Nations, which just goes to show how corrupted the discourse is.
To illustrate the perversities further, consider why critics focus their campaigning on Britain, rather than, say, Saudi Arabia, to take more refugees. This is not borne of any legal argument (Britain is not a neighbour to any source of refugees), nor any ethical argument (Britain has already taken its fair share), nor any economic argument (Saudi Arabia has more spare capacity than Britain), nor any socio-cultural argument (most refugees of our time are Arab and/or Muslim).
The lobbyists focus on Britain because migrants prefer to focus on Britain, not because they should focus at Britain. They target Britain for Britain’s unusual material benefits, political liberties, rights to immigrate, and rights to remain, not for any international legal reason.
Western countries have got in the habit of complying with the lobbyists and ignoring international law, while pretending that they are upholding international law. In the end, they are damaging the system’s credibility, privileging economic migrants, and disadvantaging refugees. The system rewards rule-breakers and punishes rule-followers, because governments have little control on migrants once they have landed, except by facilitating their migration to the next country or by denying legitimate claims for asylum. Meanwhile, the least lawful and autocratic countries are incentivized to push out their least desirable residents, knowing that they’re unlikely to return.
The abuse of asylum is changing the whole international system, redistributing people from the most violent, corrupt, and authoritarian societies to the most peaceful, fair, and democratic countries – a transfer of risk without solving the causes.
The economic burden is terrific – the British government officially forecasts immigration at a lower rate than the current rate, but this still implies that a family home must be built every 5 minutes for 25 years just to accommodate migrants.
Recipient societies are impoverished and destabilized; ordinary people respond rationally with localism, nationalism, sectarianism, and anti-globalization in the hope of restoring stability, while their elites and articulate classes accuse them – hypocritically – of biases and illegality. Uncontrolled migration is creating a less harmonious, less rule-based, less free, less stable world.
If you're interested in writing for International Policy Digest - please send us an email via firstname.lastname@example.org