Two bites of the apple- limitation in professional negligence cases
Today we face “the greatest movement of the uprooted that the world has ever known”, according to Tracy McVeigh and Mark Townsend in the Guardian. The UN High Commission on Refugees (‘UNHCR’) records that 65.3 million people are forcibly displaced worldwide and that every minute 24 people leave everything behind to escape war, persecution or terror.
Next week is Refugee Week - a nationwide programme celebrating the contributions made by refugees in the UK, and helping to promote their integration and acceptance in communities across the country. For many, the treatment of refugees as a class of individuals requiring state protection is a central feature of any civilised society. But this view is relatively new.
In his paper, Refugees and History: Why We Must Address the Past (2007), Phillip Marfleet observes that “ideas about sanctuary, asylum and refuge have an ancient lineage and are found in written records and oral traditions worldwide”. In particular he cites religious traditions such as the Islamic Prophetic experience associated with emigration and flight, and the notion of ‘ibn sabil’, meaning the wayfarer “to whom respect is due and protection must be offered”. Sanctuary is also an important tenet of Christianity, with the church offering a place of safety to strangers and outsiders. One well-known example might be Esmerelda, a Roma woman, taking refuge from the French authorities within the walls of the Notre Dame in Victor Hugo’s famous novel.
While the principle that those fleeing danger deserve protection is one that has permeated most societies in most eras, such assistance has traditionally been the domain of individual agents, religious institutions, or charities. In the twentieth century, this changed.
Academics writing in this area often make the point that the history of refugees has until all too recently been ignored. This could be due to the difficulty of tracing people who are stateless or displaced, or, perhaps more cynically, it could be because history famously ignores the ‘losers’. Peter Gatrell in The Making of the Modern Refugee (2013) identifies particular instances of mass migration in history, such as the end of the Moorish Rule in 1492 which forced the flight of thousands of Jews and Muslims, the Huguenots migration from France following the Revocation of the Edict of Nantes in 1685, or the revolution in Haiti in 1791. Significantly, he argues that such examples “belong to a more remote geopolitical universe and generated nothing like the institutional response that became familiar in the modern era”.
Although record-keeping in the twentieth century was undoubtedly better than any used to document the plight of the fleeing Huguenots, the inescapable fact is the ‘total war’ and genocide of the twentieth century precipitated population mobility on a scale never before witnessed in human history.
“The History of International Protection”, argues Gilbert Jaeger (former director of Protection at the UNHCR), “starts with the League of Nations”. This organisation, which broke the ground for the subsequent United Nations, was created in the aftermath of World War I, the Greco-Turkish War and the Russian Revolution. It implemented a series of Treaties, which were extended to include Armenians in 1924 and “other categories of refugees” in 1928. The Convention of 1933, Jaegar contends, was a milestone in the protection of refugees and effectively required contracting parties to undertake not to remove or block refugees who had been authorised to reside there, unless for reasons of national security or public order.
Significantly, this series of Treaties linked protection to specific categories of refugees, whether Armenians, Germans, or “others”. It also failed to address the issue of ‘refoulement’ - the forcible return of refugees or asylum seekers to a country where they are liable to persecution. Indeed, “in extreme cases, refugees could be sent back across the frontier of the Reich”. Knowing what we now do about the atrocities committed by the Nazis in 1930s and 40s, such practices seem particularly repugnant.
The pivotal moment for the protection of refugees in the twentieth century was the 1950 ‘Study of Statelessness’, which effectively demonstrated the inadequacies of contemporary refugee status. There needed to be an independent mechanism to compensate for the absence of national protection. The answer..? – ‘The UN Convention and Protocol Relating to the Status of Refugees’ (1951), often referred to as ‘The Geneva Convention’. The Geneva Convention obliges its signatories to protect any person who:
‘..owing to 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 his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.’
The UK’s commitments under the Convention play a central role in the process for claiming asylum to this day. In addition to the requirement that the applicant falls within the Convention’s definition of a refugee, he/she must also have arrived in the UK or at a port of entry to the UK; broadly speaking there can be no reasonable grounds for regarding him/her as a danger to the security of the UK; he/she cannot have been convicted of a particularly serious crime and present a danger to the UK; and, finally, refusing the application must not put the UK in breach of its obligations under the Convention, by sending the applicant back to a country in which his/her life or freedom would be threatened on account of his/her race, religion, nationality, political opinion or membership of a particular social group.
The UK’s obligations are also tied to the Common European Asylum System, parts of which, the UK has opted into.
While creating a formal mechanism by which those in fear of persecution can claim asylum in the UK, the Convention still has only limited reach with approximately 25% of states remaining non-signatories. The Treaty also fails to protect those who leave their home state because they disagree with the political environment in which they live, but fall short of being persecuted for it, as well as people who are internally displaced. Moreover, the Convention effectively excludes most of those seeking protection, including all those located outside of Europe, leading to a disproportionate dispersal of refugees. This is because claims can only be made once someone is in the country where they plan to claim asylum, while the journey to that country can prove fatal in itself.
Since the Convention was ratified, further conflicts such as the Hungarian revolution in 1956, the decolonisation of Africa in the 1960s, genocides in Rwanda and Bosnia, and most recently the wars in Iraq and Syria have meant that the UNHCR, which was only ever supposed to be a three-year project, is still going strong 68 years after its inception. But despite the best efforts of humanitarian and government organisations across the globe, we are now witnessing the highest levels of displacement on record. Marfleet argues that part of the problem is a failure to fully understand the refugee crises of the past, and that “denial of refugee histories is part of the process of denying refugee realities today”. Refugee Week presents an excellent opportunity to rectify this, and to reflect upon the many struggles and stories which have brought people from all corners of the world to seek sanctuary on unknown shores.
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