Michael McDowell: Asylum conventions are outdated and in urgent need of a rethink

The results of a Red C poll published in the Business Post at the weekend probably spoiled breakfast for many ministers and their advisers.

Apart completely from the poor showing in terms of political support for the Coalition parties, the poll dealt with issues relating to asylum seeking, refugee accommodation, and location of accommodation centres in local communities.

The opinions expressed are not all that surprising. Seventy-five per cent of those polled (especially Sinn Féin supporters) agreed that Ireland was taking in “too many” refugees. All this is in the context that Ireland, while experiencing a profound domestic housing shortage, has increased the number of people seeking temporary or international protection in public accommodation from about 8,000 in February 2022 to 86,000 now.

This figure reflects two separate streams of migrants – Ukrainian war refugees whose status as refugees has been automatically accepted by Ireland, and an annual stream of non-Ukrainian asylum seekers from countries including Somalia, Algeria, Afghanistan, Georgia, the Middle East and other north and west African states.

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At the heart of the matter is the important distinction – sometimes blurred, sometimes deliberately conflated or denied – in international law between economic migration and asylum and international protection-seeking.

International law, as established by successive conventions on granting refugee status to those fleeing war and persecution, has developed dramatically since its inception after the second World War. At that point, acceptance of displaced people was radically shaped by economic, geographical and transportation realities. It would not have been possible for the vast majority of people fleeing the Indo-Pakistani troubles or the Chinese civil war or colonial wars in Africa or Arab Israeli conflict in 1948-1949 to take a flight or board a ship bound for western Europe seeking some form of asylum.

The instruments of international legal protection were drafted and crafted to deal with circumstances far removed from those existing today on the littoral Mediterranean or, indeed, the English Channel

Nor did the 1951 UN Refugee Convention or the 1967 Protocol envisage great numbers of economic migrants crossing continents or booking transcontinental air flights (including onward flight connections from safe countries) to present themselves without identity documentation, visas or prior notification in countries where they would be entitled to basic welfare and accommodation while the destination state conducted lengthy present-day administrative and judicial processes in respect of their claimed status.

The stark fact is that those instruments of international legal protection were drafted and crafted to deal with circumstances far removed from those existing today on the littoral Mediterranean or, indeed, the English Channel where economic mass migration finds some degree of assistance from the procedural protections afforded by those instruments.

[ Why many seeking asylum in Ireland may be without a passport ]

The legal concept of migrants’ rights is not by any means equivalent to some international personal right to migrate. Nation states have obligations to those seeking international protection – but they also have the right to accept or refuse migrants in accordance with their own laws, policies, and needs.

Even in the case of the EU, the law requires that such migration is for the purpose of engaging in economic activity, not simply changing residence as a matter of personal preference or to enjoy welfare or tax advantages.

Britain cannot throw in the towel on cross-channel small boat migration without effectively throwing open its borders

While the Tories are flailing about with the issue of migration and while they notoriously mis-sold the notion that Britain’s need for migrants was solely the result of EU membership, it isn’t simply a case of them being hoist on their own petard.

What is happening in the English Channel is not sustainable at a number of levels – in terms of migrant safety, combating trafficking, national security, migration policy, maintaining domestic confidence in the rule of law and fostering domestic support for diversity in difficult economic times. Britain cannot throw in the towel on cross-channel small boat migration without effectively throwing open its borders.

We have our own migration needs in Ireland too. Our economy is hugely dependent on and boosted by migrant workers at so many levels. We need coherent migration programmes. As the ambassador from Georgia pointed out to public representatives in Leinster House, Ireland needs construction workers. Ireland will pay construction workers five to 10 times what they might earn in Georgia. Why is there no legitimate programme for structured immigration in such cases?

A proper, effective and functioning system of migration depends on a proper, effective, timely and functioning system of asylum law that can deal with refused or withdrawn claims. According to data compiled by the Economic and Social Research Institute, 880 applications - or 19 per cent - were rejected at first-instance in 2022, and 41 per cent were rejected at final decision stage. The present international protection system simply cannot deal with mass migration posing as asylum seeking. Deportation is not effective as a deterrent (as the Tories will find out in Rwanda).

Although it may be unfashionable to say it, there has to be a big international rethink on conventions and law on asylum and protection. The present mess is not sustainable for liberal democracies. It will fuel illiberal politics if people’s legitimate worries are condemned as wrong-headed or worse by politicians who seem helpless to control events.