Asylum: the new trial by ordeal

My parents were asylum seekers, part of a previous wave trying to escape oppression and murder.

My mother, aged 19, left home on her own, was not able to come to Britain (because of closed borders in the 1930s) and went to visit her sister who had managed to gain settlement in South Africa. But my mother was not allowed to stay there either, and so took a train on her own northwards to the next British colonial possession. She got off at the first station over the border.

That was where she met another refugee like herself, and some years later I was born.

We love to think that we have made progress since those pre-second world war days. If you read up now about the complicated right of asylum (Geneva Convention of 28 July 1951 on the Status of Refugees, European Convention on Human Rights, various EU directives and regulations), there is a legal and enforceable framework for asylum seekers. You may wonder, therefore, why those fleeing the war in Syria must endure such an obstacle course to claim their status.

We have seen this obstacle course on TV – walking with children for uncountable miles, being fleeced of life savings by criminals, packed into unsuitable boats that often sink, clambering onto beaches, walking more uncountable miles, packed into unsuitable lorries, and so on. Many die in the effort. The trauma for the hundreds of thousands who survive will be enduring.

(The only heartening part has been to see that there are some good ordinary people in many countries who have defied hostility and indifference to give what little help they could.)

There is nothing in any of the legal rights for asylum seekers - and I am here talking only about asylum seekers, and not other kinds of migrants - which says that they must prove themselves by surviving lethal hurdles. There is a persistent commentator under my blogs who asks whether I will ever say anything negative about the EU. Well, in all my life I have never been so ashamed of our European and national leaders as at present.

I can understand why at the beginning of the migrant flow politicians were unsure what to do, hoped the problem would go away, suggested targeting the people-traffickers, or whatever. But the right to asylum has been turned by their inaction into the right to participate in a sort of TV reality show where the lucky ones who can swim when the boat sinks or breathe when the lorry ventilation breaks down win the prize of being put in an asylum centre surrounded by hostile locals.

My parents had much better treatment in the 1930s before all this fancy legislation was put in place.

I have never been so ashamed of our European and national leaders as at present

If you read the Home Office’s publication on refugees from Syria, published in 2014 (since when the position has deteriorated) by a government department not known for its softness towards asylum seekers, it is clear that the overwhelming majority of those fleeing Syria have a legal right to asylum.

There is a nauseating description of the breakdown of all safety and decency in Syria, followed by the words: ‘Case law has established that it is likely that a failed asylum seeker or forced returnee would, in general, on return to Syria face a real risk of arrest and detention and of serious mistreatment during that detention as a result of imputed political opinion. Most Syrian nationals are therefore likely to qualify for refugee protection.’

This is a legal right, not qualified by the need first to undergo hazardous tests.

Our beloved leaders in Europe, so modern, so compassionate, have collectively returned us to the barbarous legal past. The right to asylum has become the new trial by ordeal of medieval times. The guilt or innocence of the accused - or rather the right to asylum - is determined by subjecting asylum seekers to a lethal experience.

In medieval Europe, trial by ordeal was based on the premise that God would help the innocent by performing a miracle on their behalf. Well, nothing has changed.

All is not yet lost. Just a few days ago, the German foreign minister, Thomas de Maizière, said that an EU-funded refugee camp in Turkey with an asylum processing centre is needed: ‘We may need to use European funds to build a large refugee camp to decide there [in Turkey] who can come to Europe.’

It has taken many months and an unknown number of deaths, injuries and suffering.

But we might be moving to a more humane solution at last.

As lawyers, we owe it to our professional duty of supporting justice and the rule of law to insist on legal rights being granted humanely, and to oppose a return to medieval times. Isn’t medieval what we call our opponents?

Jonathan Goldsmith is a consultant and former secretary-general at the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs