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Patricia Tuitt, False Images - The Law's Construction of the Refugee,
Pluto Press, London, January 1996, ISBN 0 7453 0745 0 Sb £12.99, ISBN 0 7453 0744 2 Hb £40.00, 196pp
Reviewed by Dr. Helene Lambert, Lecturer in Law, University of Exeter.
Copyright © 1996 Helene Lambert.
First Published in Web Journal of Current Legal Issues in association with
Blackstone Press Ltd.
The title for this book could as easily have been The Death of the Refugee. The refugee, whether understood as an individual or as a legal concept, is almost dead: it is reduced to the definition in the 1951 Convention on the Status of Refugees and it offers an increasingly limited protection. From being a strong and dynamic post-war construction, the refugee has become obsolete to some extent. And what better choice for such demonstration but to take the United Kingdom as a case study.
Tuitt's position on the issue of protection offered to refugees in Western Europe clearly is that it is inappropriate. She questions the function of the law in this sphere, more particularly, she questions the future of refugee law as well as the morality of its past life, seeking to demonstrate that it is the cause of some of the existing anomalies in the current system of protection (pp 1-2).
After a brief introduction on the above issue, Tuitt's first Chapter presents the theoretical framework of the book. She argues that the main aim of refugee law is to control the costs of the refugee to Western European countries. She distinguishes between internal costs (for example, the costs of rebuilding internal infrastructure of some countries) and external costs (for example, resettlement costs) and recognises that concern for internal costs is fairly recent in the debate on refugee law and policy. Indeed, international refugee law has, so far, only been able to address external costs. She rightly points out that "contrary to popular belief, refugee law is not motivated by exclusively humanitarian concerns" but by the desire to reduce "the external costs of refugee-producing phenomena" (p 7). Indeed, refugee law today offers only limited protection. This is reflected in the four functions of refugee law. First, by defining a 'refugee' as an 'alien', refugee law excludes the 'more vulnerable' refugees who remain in their country of persecution. Second, by defining a 'refugee' with reference to persecution on particular grounds, refugee law fails to protect major categories of victims of human rights violations. Third, since its creation, refugee law has been manipulated by Western states in order to fulfil their political aims, i.e. to evade external costs or, like today, to unite states in their combat against immigration into Europe. Fourth, refugee law allows the spreading, shifting and sharing of costs between countries. Thus, she concludes that the main function of refugee law is to control migration flows rather than to provide solutions to the problem of refugees. Therein lies the "irreparable conflict between international refugee law and the refugee" (p 23).
In every definition, the difficulty is to agree on a balance between inclusion and exclusion. In her second Chapter, Tuitt challenges the myth of legal neutrality and argues that the existing legal definition of a 'refugee' strongly reflects the unjustifiable desire to exclude children, women and homosexual refugees. By doing so, she compares the definition provided in the 1951 Convention on the Status of Refugees, as applied and interpreted by the English courts, with that in other international instruments (i.e. the Organisation of African Unity (OAU) Convention of 1969, the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status of 1979, humanitarian law and human rights law) and reaches the conclusion that much work remains to be done "in terms of the substantive definition of the refugee and in terms of the physical context within which refugee examinations are made" (p 45).
But it is by examining the attitude of European states towards de facto refugees (alienage following "external aggression, foreign domination, or events seriously disturbing public order..." (p 48)) that Tuitt's expertise in comparing and in analysing legal literature is shown at its best. Central to Chapter Three is the question of whether the principle of non-refoulement is applicable to de facto refugees, in particular whether or not European states are legally required to provide temporary refuge. Using exceptional leave to remain in the United Kingdom as an example, the point is made that as long as temporary protection continues to be a product of the exercise of administrative discretion and that the notion of manifestly unfounded asylum applications continues to be used, the concept of the refugee in Western Europe will remain untouchable by other constructions, particularly by the definition found in the 1969 OAU Convention. This is regrettable, particularly for group refugees in the United Kingdom, because unlike refugees granted exceptional leave to remain on the ground of personal compassionate reasons, refugees arriving en masse from certain countries are denied all possibilities of having their situation upgraded to a more permanent status (durable territorial asylum and better protected rights) after a period of four years. Moreover, the scope of challenge is limited to one of judicial review and to the application of the principle of legitimate expectations.
Chapters Four and Five examine alienage and persecution, respectively. From there onwards, the book becomes almost entirely focused on the asylum law of the United Kingdom, leaving the realms of the international sphere to the earlier Chapters. Central to the line of argument developed in the book is "the fact that the requirement of refugee flight distorts the character of the refugee as perceived within refugee- receiving states" (p 67). Western European countries may indeed only see those who can escape, the majority of whom are male adults. After having introduced the concept of "the new asylum seekers" (this term is attributed to the waves of asylum seekers coming from Third World countries since the 1970s), Chapter Four concentrates on the philosophy of control and more particularly on the tight measures applied in the United Kingdom. Tuitt's conclusion is that the strong tie which exists between refugee law and immigration law finds its origins in "the new asylum seekers" phenomenon. This is reflected in recent debates on refugee law which, in Western Europe, are closely related to race issues. Chapter Five simply goes through the legal requirements of a "well-founded fear of persecution" as applied by the English courts (i.e. the balance to strike between the subjective and the objective test; the concept of reasonableness) and analyses some of the key cases, such as Sivakumaran (R v Secretary of State for the Home Department ex parte Sivakumaran (1988) AC 958), Fernandez (R v Governor of Pentonville Prison ex parte Fernandez [1971] WLR 987), Mendis (Mendis v Immigration Appeal Tribunal and Secretary of State for the Home Department (1989) IMM AR 6) and Binbasi (R v Secretary State for the Home Department ex parte Zia Mehmet Binbasi (1989) IMM AR 595). She argues that the use of the objective test by the English courts in individual cases causes the refugee to be disenfranchised (p 96) and that the way evidence is used (or not used) by adjudicators prevents them from freeing themselves from prejudicial misconceptions (p 104).
Chapter Six discusses asylum and the extent to which states have been willing to eradicate some of the substance of the norm of non-refoulement (Article 33 of the 1951 Convention on the Status of Refugees). In particular, Tuitt shows that by manipulating "the image of the refugee and by interpreting their legal obligation under Article 33 as to the absolute minimum", states have managed to deny protection to many refugees (p 110). She discusses the third country principle and its application in Yassine (R v Secretary of State for the Home Department ex parte Yassine (1990) IMM AR 354), the impact of the Dublin Convention in the practice of the United Kingdom (Kemal Karali v Secretary of State for the Home Department (1991) IMM AR 199) and the perspective of a European policy on host third countries, in particular the question of safety. She argues that "fundamentally the problem is that European states have taken on the right to determine the safety or otherwise of a third country" (p 125) thereby slowly eroding the concept of asylum.
In Chapter Seven, Tuitt blames the lack of a fair and effective right of challenge on British governments for failing to introduce a legal system of refugee law independent from that dealing with immigration laws. She recognises, however, the improvements made by the Asylum and Immigration Appeals Act 1993. She also discusses the possibilities of judicial review. In conclusion, she points out that the appeal procedure in the United Kingdom is more and more based around speed and efficiency, both dangerous concepts to be utilising in a refugee context.
Finally, in the last Chapter, she addresses the question of the future of the refugee in the United Kingdom, with particular reference to their social and economic status. Through a whole range of measures and images (for example, political statements and fingerprinting), asylum seekers are perceived as fraudulent and undesirable immigrants, not to say criminals, thus diluting the humanitarian aspect of their plight. Their legal, economic, social and political rights suffer directly from such portrait. Tuitt's final call to save refugee law finds its full scope in the last pages of her book. Unfortunately, this falls short of providing any solution.
While I agree with Tuitt that asylum law in the United Kingdom has played a key role in stripping the refugee of protection, one should not, however, completely lose sight of the overall picture; in moving beyond asylum law, norms of human rights law, humanitarian law and other fields of international law have become part of refugee law. As pointed out in the Introductory Chapter, the focus of refugee law is shifting from the receiving countries to the producing countries. This shift is reflected in the current debate on, for instance, early warning mechanisms and on internally displaced persons. Tuitt's book does not deal with refugee producing countries. However, it was never intended to do so. This book is nevertheless most valuable for the powerful critique it provides of refugee law as it applies to receiving countries in Western Europe and, in particular, the United Kingdom.