HC 1116 and ‘Abuse’ of Asylum by Syrians

s01_10031615Statement of Changes in Immigration Rules HC 1116 was immediately condemned as “sickening”. Undoubtedly, the formula of a well-founded fear of persecution is wide open to abuse. However, in light of all the carnage that we have witnessed over the last few years, nothing could be further from the truth in the case of Syria. Designed to be a preemptive instrument, HC 1116 removes the transit without visa exemption in respect of Syrians possessing a B1 (temporary visitor for business) or B2 (temporary visitor for pleasure) category visa for entry to the United States of America. Not so long ago, the mosques of Damascus and Aleppo attracted tourists from every corner of the world who wanted to see the relics of the “Golden Age of Islam”. In addition to being a centre of culture and spiritualism, Syria was also the birthplace of Arab nationalism. Because of the Tigris and Euphrates, long before Islam’s advent as a religion and its emergence as a political force, it was an integral part of the ancient Near East. To be sure, northeastern Syria was part of Mesopotamia – the widely accepted “cradle of civilisation”.

In more recent times, despite being a dictatorship, the country became infected with the socialism of Salah ad-Din al-Bitar and Michel Aflaq. Compared to Wahabi Saudi Arabia or Khomeinist Iran, Syria was a “progressive” place. Unsurprisingly, the country used to be a popular destination for people who wanted to learn Arabic because the Syrian people were friendlier and their accent was superior to the Egyptian, Gulf or North African strands of the Arabic language. All this is no more. Bitar and Aflaq’s homeland has been transformed into a war zone and a hotbed of terrorism. It is now a place where innocents, like Prophet Muhammad’s grandson Husayn ibn ‘Alī ibn Abī Tālib, wanting to help make things better are mercilessly slaughtered in the name of Allah.

The mad jihadis of Islamic State dominate the press. They are always on the front pages. As a consequence, the plight of Syrians – who in their journey through history really have seen it all – is trivialised. But the growing plight of refugees created by the conflict is impossible to ignore. The 2015 UNHCR country operations profile for Syria presents an ugly picture and it is estimated that the conflict affects 10.8 million of the country’s 22 million population. The number of internally displaced persons (often multiple times) stands at 6.5 million; this is a 50 per cent increase in comparison to 2013 and the figure is expected to swell further this year.

Despite the lunatics of Islamic State dominating the headlines with their murder and beheadings, revealing coverage in the Guardian makes important points about the UK using EU law to remove vulnerable asylum seekers to the country of entry: dozens of Syrians are reported to have been removed from the UK under Dublin rules over a two year period ending in 2014. Visa refusals are also rampant and have steadily increased since 2011 and are presently peaking at 70 per cent.

According to Colin Yeo, “not only is the UK’s hospitality miserly, our government behaves as if it believes that refugees should be drowned in order to deter others.” The editor of Free Movement points to Germany’s generous 43,000 grants of asylum (on top of their resettlement scheme) to Syrians in the three-year period from 2011 to 2014 – which exceeds the UK number (4,292) by a factor of ten – and he complains that:

To add insult to injury, the UK has even pursued removal action against Syrians: 50 were removed to other EU states between January 2013 and December 2014, some of them very vulnerable individuals.

The claim set out in HC 1116, regarding “high” incidence of “abuse”, is massively exaggerated because not a lot of people are able to make their way to the UK because the vast majority of Syrians will not hold American B1 or B2 visas. The Home Office accepts that no part of Syria is free from armed conflict. Apart from the problems created by the Islamic State, rather than Syrians “abusing” asylum, it is the case that extreme sexual violence has become a widely used weapon of oppression and torture by government forces and men and women and children (as young as twelve) are being subjected to rape and other forms of violent and degrading sexual torture. So why should they be turned away from the UK?

Syrian President Bashar al-Assad, whose father Hafiz al-Assad was credited with creating a Ba’athist republic of fear that aroused the envy of the likes of former Iraqi strongman Saddam Hussein al Tikriti, emphatically denies that his forces have murdered thousands of civilians by indiscriminately barrel bombing territory in the hands of rebel forces.

These days Bashar al-Assad, who denies using chemical weapons but no doubt did use them, claims:

We have bombs, missiles and bullets… There are no barrel bombs, we don’t have barrels.

Even a couple of years ago, prior to the use of chemical weapons and the unprecedented rise of Islamic State, it was held that the extremely high level of human rights abuses meant that the brutal regime would go to any lengths to keep itself afloat. As noted more than two years ago in KB (Syria) CG [2012] UKUT 426 (IAC)(see here):

In the context of the extremely high level of human rights abuses currently occurring in Syria, a regime which appears increasingly concerned to crush any sign of resistance, it is likely that a failed asylum seeker or forced returnee would, in general, on arrival face a real risk of arrest and detention and of serious mistreatment during that detention as a result of imputed political opinion. That is sufficient to qualify for refugee protection. The position might be otherwise in the case of someone who, notwithstanding a failed claim for asylum, would still be perceived on return to Syria as a supporter of the Assad regime.

Overall, even the Home Office’s own materials on Syria present a really bleak picture for people affected by the conflict and, contrary to the oppressive content of HC 1116, it is impossible to say that the Syrian’s are abusing the asylum system.

The effect of HC 1116 is to deprive Syrians of the benefit of the transit without visa scheme (TWVS) and since 17 March 2015 Syrian transit passengers holding B1 or B2 visas for the USA have not been able to transit without a visa in the UK. Similarly in anticipation of the impending changes to the Immigration Rules – which will enter into force from 24 April 2015, see here – HC 1116 also makes provision for excluding Syrians from the TWVS in relation to the brand new Appendix V for visitors.

On the battlefield, the tables are turning yet again and the regime self reports that it is in communication with US-led forces battling the jihadists of the Islamic State. Ironically, Bashar and his Iranian friends, are on the brink of becoming the West’s new allies in the war against Islamic extremism and Syria has indicated that it is ready to cooperate with the US when it comes to engaging Islamic State on Syrian territory. The dangers of Syria’s war spilling over into neighbouring countries such as Iraq, Jordan and Lebanon – all of which have historically been unstable – and the risk of the creation of a further vacuum of power in the region may even demand such cooperation with Bashar because he is the devil that the West knows.

In the eyes of the drafters of HC 1116, the threat to regional and global peace and stability is such that the abuse of asylum in the UK by Syrians will no longer be tolerated. Perhaps they should try to escape to Pakistan instead. It is not a member of the Refugee Convention but, as state agents in a corrupt third world country (ranked 127 out of 175 by Transparency International in 2013), Pakistani immigration officials will probably be delighted to provide Pakistani passports for their Syrian brothers and sisters: in return for an under the table “personal fee” of course.

Paradoxically, by hosting more than 2.6 million refugees, the minority persecuting Pakistani State is presently accommodating the largest influx of refugees in the world. (In addition to 1,478,030 Afghan refugees, Pakistan is also home to 80 Iraqi, 500 Somali and 180 refugees of assorted origins.) On the other hand, by way of comparison, out of the total UK asylum applications (24,914 main applicants) in 2014, Eritreans (3,239) and Pakistanis (2,711) significantly outnumbered Syrians (2,081).

Even from an unsympathetic point of view, it is hard to see why HC 1116 singles out nationals of the most battered and bombed out place on earth. In any event, it is probably safe to say that not many Syrians hold B1 or B2 visas for the US, so exactly what abuse is the UK guarding itself against? Ultimately, by specially providing for the Syrians in HC 1116 (and by not kaleidoscopically attempting to hide these changes in HC 1025, see here), the UK government must be given due credit for being candid about its paranoia in relation to asylum and refugees.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Asylum, Immigration Rules, Pakistan, Persecution, Syria, Terrorism, Visitors and tagged , , , . Bookmark the permalink.

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