Illegal Migration Act 2023: Suella Braverman to appeal 'outdated' 1951 UN Refugee Convention - what is it?

Suella Braverman has taken aim at the 1951 UN Refugee Convention in a speech made to audiences at the American Enterprise Institute in Washington DC on Tuesday (September 26).

The Home Secretary - whose Illegal Migration Bill has been criticised by the United Nations High Commissioner for Refugees over the legality of its content - said: “We are living in a new world bound by outdated legal models to tackle a worldwide migration crisis".

Braverman wants to overhaul the framework for its stance on persecution on the grounds of discrimination. The Home Secretary claims that discrimination for being gay or a woman isn't enough to be a refugee, and that it's unsustainable to have an asylum system where "simply being gay ... is sufficient to qualify for protection”.

But what actually is the 'outdated' convention Braverman is referring to, and what grounds do her claims have?

What is a refugee?

As outlined in Article 1 of the 1951 UN Refugee Convention, a refugee is a person who "owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of [their] nationality and is unable or, owing to such fear, is unwilling to avail [themself] of the protection of that country; or who, not having a nationality and being outside the country of [their] former habitual residence, is unable or, owing to such fear, is unwilling to return to it."

What is the 1951 UN Refugee Convention?

Prior to the 1951 Refugee Convention, the rights of refugees were not recognised in international law. Instead, refugees were governed by the domestic law of the nation they settled in.

In the years following World War Two - which saw the displacement of over 40 million people - the Universal Declaration of Human Rights was established by the United Nations in order to protect the world's most vulnerable citizens. In 1951, the United Nations held a convention in Geneva, Switzerland whereby it drew up a document of legal obligations related to the rights of refugees.

However, the document was limited to protecting European refugees in the aftermath of the Second World War. It wasn't until the 1967 protocol, that geographic barriers were removed and persons fleeing conflict and persecution were universally protected under the convention. The UK signed up to the UN Refugee Convention in 1951.

What are the core principles of the 1951 UN Refugee Convention?

The cornerstone of the 1951 UN Refugee Convention, is the non-refoulment principle which states a refugee fleeing conflict and persecution should not be returned to their former country if there is a risk to their life or freedom. The convention also helped define an international standard of human rights including religion, education, housing and more.

According to the UNHCR, the list of other rights contained in the 1951 Convention include:

• The right not to be expelled, except under certain, strictly defined conditions (Article 32)
• The right not to be punished for irregular entry into the territory of a contracting State (Article 31)
• The right to non-discrimination (Articles 3 and 5)
• The right to decent work (Articles 17 to 19 and 24)
• The right to housing, land and property, including intellectual property (Articles 13, 14 and 21)
• The right to education (Article 22)
• The right to freedom of religion (Article 4)
• The right to access to justice (Article 16)
• The right to freedom of movement within the territory (Article 26 and Article 31 (2))
• The right to be issued civil, identity and travel documents (Articles 12, 27 and 28)
• The right to social protection (Articles 23 and 24 (2-4).

Why is Suella Braverman challenging the Refugee Convention?

Suella Braverman - who addressed audiences at the American Enterprise Institute today in Washington DC - is a long-standing critic of how global refugee laws are applied. Ahead of her speech to the right-wing think tank, the home secretary said the UN Refugee Convention and its 1967 protocol are no longer 'fit for purpose'.

The Home Secretary also reportedly took issue with how many refugees are eligible to claim asylum based on the convention's rules. Braverman claimed that 780 million people are “incentivised to try their luck” due to 'outdated' international asylum laws.

Braverman has particularly taken issue with article 3 and 5 of the UN Refugee Convention. When the UK processes a claim for asylum, part of its assessment is whether the individual has a 'well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion'.

However, Braverman believes the 'outdated' convention and associated case laws mean refugees are offered asylum 'simply' because they are gay, a woman or fearing discrimination in their home country. The Home Secretary suggests this model is unsuitable.

What is in the Illegal Migration Bill?

Back in March, Sunak and Braverman announced plans to crack down on small boats crossings and to deter illegal migration via the Illegal Migration Bill. The bill means that any migrant deemed to have arrived in the UK ‘illegally’ or through ‘irregular routes’ will be prevented from claiming asylum.

This new legislation would give more powers to the Home Secretary to immediately detain asylum seekers without bail or judicial review, before removing them from the UK - either by returning them to their country of origin or deporting them to a “third country” such as Rwanda.

Refugees and migrants who are found to arrive 'illegally' would also be banned from ever returning to the UK - and blocked from seeking citizenship. However, the proposed new legislation faced significant backlash from fellow MPs and European officials.

EU Commissioner Ylva Johansson told Braverman that she believes her asylum plan “violates” international law, while many human rights charities said the new legislation will breach the European Convention on Human Rights, as well as the UN’s 1951 Refugee Convention.

Meanwhile, Conservative MP Theresa May suggested the bill would fail to ensure victims of modern slavery and sex trafficking would not be detained and removed from the UK. She said the bill would "enable more slave drivers to... make money out of human misery" and "consign more people to slavery".

The High Court ruled that Rwanda plan is illegal, however the government is challenging this in the Supreme Court.