be subjected to torture or to inhuman or degrading treatment or punishment.’ Since 9/11 the West’s widespread use of torture and rendition has turned the clock back: Britain and the US are now countries which inflict or subcontract torture in the name of national security, as France did in Algeria during the 1950s or Syria does in 2012. Nonetheless ‘humanitarian grounds’ are often judged sufficient for permission to stay in a country; sometimes – as in Austria and Germany during the 1990s – asylum seekers are simply left with no status at all: they have been refused leave to remain, but to send them back would contravene Article 3 of the European Convention.
In Britain, ‘exceptional leave to remain’ is granted at the discretion of the Home Office. It is an inconsistent, opaque and unreliable award, and because it is discretionary, there is very little argument to be had about it. It is nonetheless a means of extending some sort of sanctuary to refugees who are refused Convention status. Although Britain withheld that status from 99.6 per cent of the Somalis who requested it in 1996, 93 per cent were given exceptional leave to remain. In practice, Convention status has tended to entail the right of permanent residence in host states.
Some people believe the Convention is obsolete in any case. ‘The present arrangements,’ the conservative columnist Bruce Anderson wrote in the Spectator in 1999, ‘commit us to obligations which we can never meet, so they ought to be repudiated.’ He reckoned an annual quota of fifty asylum seekers to be a manageable intake for Britain – in a year when 71,000 fetched up – provided there were interim measures to deal with cases such as ‘the plight of Jews in the 1930s, the Hungarians after the 1956 Uprising and the Ugandan Asians’. These are the arguments of the canny shirker, who knows what work he can afford to turn down: adhere to the bare minimum of the Convention when it suits you, spit on the sidewalk when it doesn’t. (In 2010 Anderson advocated the torture of wives and children of suspected terrorists.) Yet his objections to the Convention pinpoint an abiding weakness: it was drawn up as the Cold War got under way, and quickly began to serve the West’s purposes in the conduct of that war.
The Communist regimes were quick to bridle at the Convention, and by 1965 the US had amended its Immigration and Nationality Act to grant Convention status to almost anyone coming from a communist country. In the absence of Cold War imperatives, the liberal adherence of Western signatories to the terms of the Convention is, with some exceptions, waning fast. In its place are ‘temporary protection’, exceptional leave to remain, ‘humanitarian’ leave, ‘de facto refugee’ status, ‘Duldung’ (or ‘tolerated status’) and other forms of halfway house. There is less international political advantage nowadays in accommodating refugees. Far fewer of the people who wish to claim asylum are anticommunists in any useful sense, even if they come from the remains of the Eastern bloc or China. As for domestic political advantage, there is none. Many asylum seekers, if they could get in, would be black; a proportion coming from the east into Western Europe are Roma. Most electorates in the rich world have set their hearts against that kind of influx.
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