‘Europe really does protect our fundamental rights’

Brexit Europe fundamental rights Michael Kingston
Photo RollingNews.ie/Department of Defence

If the Brexit side wins next week’s Referendum Britain’s humanitarian obligations will get a lot tougher

By Michael Kingston (assisted by Gareth Peirce)

I write as a lawyer that works on International regulatory issues and Human Rights to give some clarity to readers about two of the key issues central to the debate about Britain’s membership of the European Union, namely, migration and the European Convention on Human Rights.

The British public is not being told the position in simple terms. Voters may make their decision on a misunderstanding.


It is popularly believed that Britain leaving Europe will halt migration, including refugees arriving in Britain via North Africa. In reality, the apparent problematic element of migration may actually increase.

Last year saw a net increase in migrants of 330,000, half of whom came from European Union Member States.

The Leave campaign says these European economic migrants are a burden on the British system. Remain says they are usually all hard workers, skilled, and contribute to the economy, enabling it to increase GDP.

Irish migrants, we are told by the likes of Northern Ireland Secretary Theresa Villiers, will continue to have the freedom to come to the United Kingdom under the Free Travel Agreement agreed between Britain and Ireland. But the fact the EU Border will begin at Ireland’s Border with Northern Ireland means there is a question mark over this which has not yet been answered.

Brexit Europe fundamental rights Michael Kingston
Border checkpoints in Northern Ireland

The problematic element of migration, people from outside the European Union, including illegal immigrants, will not be resolved by Britain leaving the European Union: 100,000 non-EU students remain in the UK at the end of their courses, a “problem” that will continue, unless it is fixed.

There is undoubtedly pressure on Britain’s Border Agency to deal with illegal migration.

Leaving Europe will arguably make the situation worse, as Britain relies on France for huge assistance in its Border Agency work. Many economic migrants from outside the European Union are coming through Greece and Turkey and across the Mediterranean, intermingled with genuine refugees. Up to 4,000 of these are currently interned in the ‘jungle’ in Calais.

Leaving the European Union will not change Britain’s obligations in any way under International Law to process these people – many of whom claim asylum as refugees under the United Nations’ 1951 Refugee Convention. Under which it is the legal obligation of signatory States to assist refugees “where there is a serious threat to their life or freedom”.

Of course, not all migrants are genuine refugees but they do still have to be processed and this may take years before any deportation, mainly due to a lack of resources in the processing of these claims. When one sees the pressure the Mediterranean migrant crisis has put on other European countries it is clear we have not fully appreciated what a comfortable position Britain has been in, to date.

The reality is Britain’s fellow EU members have shielded it from the brunt of the humanitarian emergency that is the migrant crisis. Britain is not part of the Schengen Agreement, which has caused so many problems and tensions on mainland Europe.

The 2003 Touquet Treaty with France puts Britain’s Border control in France itself. Should Britain leave Europe the French have every right to tear up the Touquet Treaty. This has already been threatened. In leaving the EU Britain will be at the mercy of the French and anti-British sentiment in that country. France’s appetite for dealing with Britain’s problems on its own doorstep may be greatly lessened. Britain will have to go it alone, dealing with migrants in Hastings, Dover, and elsewhere.

Brexit Europe fundamental rights Michael Kingston
Crew of the LE Roisin as they launch to Rescue Personnel from the Mediterranean Sea. 23/5/ 2016 Photo RollingNews.ie/Defence Forces Press Office

Britain’s Coastguard Agency currently relies greatly on the French as was highlighted recently by the rescue of migrants in the English Channel. Britain has only four patrol vessels for its 7,700 miles of coastline. The Royal United Services Institute and the Defence Science and Technology Laboratory say France has “20 times the number of resources per kilometre of coast”.

There will be nothing stopping European countries from waving the North African migrants through to Dover and unscrupulous British traffickers can be expected to take advantage of this weakness.

The President of the French coastguard, Bernard Barron, said: “It’s starting to become a very similar situation to that seen in the Mediterranean and my biggest fear is that the same kind of tragedies we see in Greece or Italy will start to repeat in the Channel” There is no doubt that Britain is ill prepared for such a situation.

European Convention on Human Rights

The British public has been told that many of its ills are due to it being a signatory to the European Convention on Human Rights (ECHR), mainly arising from the difficulties faced by the Home Office in its fight to deport the radical Muslim cleric Abu Qatada.

Brexit Europe fundamental rights Michael Kingston
Abu Qatada

The ECHR is actually a standalone Convention, ratified by 47 countries, including Russia although its principles are enshrined in fundamental articles of the Treaty of Europe. It is incorporated into British law under the Human Rights Act 1998. Leaving Europe will not reverse Britain’s obligations under the ECHR unless the Human Rights Act 1998 is repealed.

Is this really a good thing?

One of the fundamental rights of the ECHR is the right not to be returned to a country where there is a possibility of subjection ‘to torture or to inhuman or degrading treatment or punishment’. The vast majority of deportations, despite appeals under this provision, are successful.

In the case of Abu Qatada, the solution ultimately was to get an undertaking from Jordan that Abu Qatada would receive a fair trial and would not be tortured or executed, a solution, which, perhaps, Britain should have obtained from Jordan much earlier on.

The Charter of Human Rights, the basis of the 1950 ECHR, was championed by Winston Churchill after the horrors of Nazi Germany in World War II and it was drafted with substantial input by British lawyers; one being David Maxwell Fyfe who went on to become Britain’s Home Secretary.

Brexit Europe fundamental rights Michael Kingston

The provisions incorporated in the Treaty of Europe have improved the lives of millions of Europeans where countries have had to reach benchmarked standards on human rights before being allowed membership of the EU, something that Turkey, Serbia, and other prospective members have not yet satisfied, and which Turkey is a long way from yet achieving.

These principles provide a protection for the weak within their own countries, and for small nations oppressed by others, and include civil protections such as freedom of the press.

We do not even have to look beyond British borders to understand the benefits. Without the ECHR the Hillsborough bereaved would not have obtained justice, and the institutionalised collusion of the South Yorkshire Police Force would have remained unchecked. Leaving the EU and reversing the Human Rights Act will mean recourse to justice will rest once more in the hands of the legislators of the day and the Government minister responsible as ultimate adjudicator.

Brexit Europe fundamental rights Michael Kingston
Without the ECHR the Hillsborough bereaved would not have obtained justice

The ECHR also underpins the Good Friday Agreement, the Stormont Assembly, the Scottish Parliament and the Welsh Assembly. In undermining the principles of the ECHR enshrined in the Treaty of Europe, and reversing the 1998 Human Rights Act, what sort of message will it send out to other nations about respect for the ECHR, and what will replace it in the United Kingdom?

These are questions that cannot be answered in concrete terms at the moment by the Leave Campaign.

As Gareth Peirce, who represented many high profile defendants on human rights issues and miscarriages of justice (such as the Guildford 4 and Birmingham 6) said in preparing this article “Can we seriously countenance the hard-won commitment to enforceable rights slipping back unchecked into the insular indifference that caused injustice after injustice in our history?”

Humanitarian Assistance Zone in Mediterranean

Britain’s obligations under international law to assist refugees fleeing war torn North Africa and elsewhere will continue regardless of whether the country is in or out of Europe on 24 June.

It is a matter of shame, that a proper process has not been implemented on the North African coast, despite the calls for a defined solution.

Just two weeks ago 900 people drowned in a few days, it barely making media headlines.

A mechanism exists to put in place a Humanitarian Assistance Zone on the North African coast, through the Inter-Agency Standing Committee of the United Nations. Under UN resolution 46/182 it would be possible to process refugees and migrants in a humane and fair way.

Brexit Europe fundamental rights Michael Kingston
The Military Sealift Command hospital ship USNS Comfort. (U.S. Army photo by Spc. Landon Stephenson/Released)

It would involve using the many ferries and hospital ships that are currently laid up around the globe. Processing refugees and migrants in a Humanitarian Assistance Zone on the North African coast is far preferable to them arriving on Europe’s shores in a dysfunctional mess by land and sea, and would help resolve some of the issues discussed herein for Britain.

Control mechanism

Creating the zone would also destroy the deadly business of people trafficking and impose a control mechanism on the North African coast to differentiate between economic migrants and refugees under international law.

The International Chamber of Shipping, whose member vessels are under enormous pressure to rescue migrants in accordance with their duty under international conventions, have argued that the UN needs to create the Humanitarian Assistance Zone. It would establish the jurisdiction to allow the European “state” to control the North African coast, in areas such as Libya and Egypt – but perhaps as far as Tunisia, Algeria and Morocco – and bring the Arab countries to the table.

It is no good waiting outside the jurisdiction with naval and coastguard vessels 12 miles offshore. (Permission is required to enter another country’s 12-mile limit). The zone needs to be activated immediately by the UN’s Inter-Agency Standing Committee and it is our duty under humanitarian law to do so.

Irish experience

Irish people, given what they suffered on decrepit ships in the past, should appreciate more than any and they and Ireland should do all they can to support this, along with Britain.

We have an enormous decision to make on 23 June, but let us make it with the correct information and an understanding of the reality of the consequences for migration and Human Rights.

And we must also remember too our continuing obligations under international law to help those in need.

We will be defined by the path that we choose.

Brexit Europe fundamental rights Michael Kingston
Michael Kingston

Michael Kingston, from Goleen, Co Cork, Ireland, works in London on International Regulation and is a past winner of Lloyd’s List Global Maritime Lawyer of the Year (2014–2015) for his work on safety of life at sea. He is working with the International Chamber of Shipping on a Humanitarian Assistance Zone in the Mediterranean.

In preparing this article Michael was assisted by Gareth Peirce, the human rights lawyer who has worked on many significant cases, including the Birmingham 6 and Guildford 4. In 2015 she was awarded the Irish Presidential Distinguished Service Award by Irish president Michael D. Higgins for her support of the Irish people in England and abroad.


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