Democracy and observing human rights are not always compatible

The Refugee Convention was intended as a temporary expedient and not as a vehicle for permanent settlement elsewhere

Like it or not the tilt to the extreme right in elections to the EU parliament is part of the democratic process borne of an intolerance of immigrants and refugees.

In Europe, anti-immigrant and anti-refugee extreme right parties are on the march again after falling out of favour last century with the defeat of their ancestral parties that thrived on hatred of Jews and other minorities before they were roundly defeated in World War II.

Provided they do not proceed to abolish democracy – like the Nazis did in Germany – the extreme right are entitled to be involved in government wherever they get elected even though they are not to be trusted to protect the human rights of the people they scapegoat to get elected.

The principle underpinning the European Convention on Human Rights (ECHR) that “justice and peace are best maintained by an effective political democracy and a common understanding and observance of the human rights upon which they depend,” is more an aspiration than a fact of political life.

To an extent, democracy does depend on freedom of thought and expression and assembly and association, and the right to free elections, and an independent judiciary, all of which are enshrined in the ECHR. But some rights can be abused to dilute democracy and the rights and freedoms of others.

The truth is that representative democracy and observance of human rights are not always compatible because people are free to vote for populist political parties of the extreme right whose main political platform is intolerance of immigrants and refugees. There was a case in which a political party was not protected by human rights law but that was because it was overtly against democracy.

That does not mean the electorate are bad people because they vote for populist parties of the extreme right. They are not. It’s just that it is a worldwide phenomenon that whenrefugees who look different and have a different culture and values arrive and settle in large numbers at the expense of the less well-off in any given society, they are resented. What then happens is that indigenous people react negatively towards them and vote for populist extreme right parties that historically thrive on supremacist ideology masquerading as patriotism.

The problem is not refugee law whose purpose is to help people escape persecution. It is because of an unholy alliance between people smugglers and people wishing to emigrate for a better life elsewhere, interspersed with genuine refugees who want to claim asylum in Europe rather than what’s on offer in neighbouring countries.

However, the 1951 Refugee Convention only protects refugees in the process of escaping persecution by prohibiting removal to the borders of the country of persecution. It was intended as a temporary expedient and not as a vehicle for permanent settlement elsewhere. In fact, the scheme of the 1951 Refugee Convention is concerned with when people become refugees but also with when refugees cease to be entitled to protection when the circumstances which caused them to flee their countries no longer exist. I remember a case of a member of the Pakistan People’s Party (PPP) who claimed refugee status in the UK when the PPP was ousted from power in Pakistan who was refused because by the time the country’s interior ministry (Home Office) decided his claim, the PPP was back in power.

The 1967 Refugee Protocol extended protection to refugees fleeing persecution worldwide rather than in Europe before 1951, but that was not done to enable people everywhere to choose protection in Europe but to spread its humanitarian purpose across the world.

EU law extended refugee rights to protect non-refugees whose human rights such as the right to life and the right not to be tortured would be violated if sent back to their countries which became necessary as a result of civilised advances in human rights protection in Europe.

These laws represent the best in human nature, but they are not shared by people at large who do not like the influx of refugees in large numbers. Would that it were otherwise, but the sad fact is that it is how indigenous people everywhere feel and how they vote.

The answer to the problem is a restatement of the purpose of refugee protection under the 1951 Refugee Convention as an escape mechanism to the first safe country of arrival coupled with discrete resettlement schemes for equitable sharing worldwide to help countries with large refugee arrivals.

Resettlement can operate like it did with the Vietnamese boat people, many of whom escaped Vietnam to neighbouring countries but who were afterwards equitably resettled in the US, Canada and Europe. Resettlement can also borrow from the Dublin Convention under which family links and other connecting criteria may be used as pointers to the most appropriate country to resettle refugees within the EU.

The shift of emphasis to refugee protection as an escape vehicle would mean that a claim to refugee status would trigger refugee evaluation procedures only in first safe countries, which most European countries would not be. If I had to name the most significant reason for the huge numbers of people seeking refugee status in the UK in the last 40 years it is that it quickly became common knowledge that the minute you utter the word ‘refugee’ at a port of entry you trigger refugee evaluation procedures that could last months if not years. That may have been the correct approach when refugees could arrive direct from countries of feared persecution, but most refugees cannot do that anymore because of visa restrictions.

In Cyprus, the lurch to the right is more complex than just being anti-refugee, but it was tempered by the election as an independent Member of the European Parliament (MEP) of a maverick 24-year-old guy who speaks Greek in the Cypriot dialect and who confounded the party system, leaving the extreme right in fourth place.

Alper Ali Riza is a king’s counsel in the UK and a former part-time judge