UK Home Office Guidance Note on Israel, Gaza and West Bank and European asylum policy

The UK Home Office has issued a February 2009 Operational Guidance Note on Israel, Gaza and the West Bank setting out the main types of asylum claim, human rights claim and Humanitarian Protection claim (whether explicit or implied) that are expected to be submitted on behalf of individuals arriving to the UK from the region. A number of interesting submissions are included in the report, particularly the section on the general history of the region; some of which are of course not uncontroversial.

As the main categories of claims,

“Where appropriate [the note] provides guidance on whether or not an individual making a claim is likely to face a real risk of persecution, unlawful killing or torture or inhuman or degrading treatment/punishment. It also provides guidance on whether or not sufficiency of protection is available in cases where the threat comes from a non-state actor; and whether or not internal relocation is an option.” (section 3.1 of the note)

Inter alia, the note presents information on members of militant groups; Fatah members/Gaza; Hamas members/West Bank; Forced recruitment to armed groups; “Israeli” collaborators (meaning Palestinian recruited by the Israeli occupying power to work as collaborators mainly with the security services); UNWRA (Article 1D of the 1951 Refugee Convention); and statelessness.

Notably, very little information is provided on the operations of the Israeli occupying power in both the West Bank and Gaza Strip, and the fact that the ultimate responsibility for the well-being of the civilian population is that of the belligerent occupant’s. It is arguable therefore that some kind of mention could have been made of the application of international humanitarian and human rights law, and namely, the provisions of the international law of occupation, and the systematic violations of these provisions by Israel.

The note, however, does not look to adopt a legal position as for the present status of the Strip, i.e. occupied or not “[t]his should not be taken to imply any comment upon the legal or political status of these territories” (section 1.3 of the note), and presents the Oslo Accords territorial divisions (namely, territories A, B and C) as the applicable regime in the West Bank. Particularly the latter submission is not clear cut since the Palestinian Authority  (PA) was numerously noted for its lack of sovereign power and Israel persists to occasionally exercise its judicial and administrative jurisdiction also in the territories controlled, according to the framework of the Accords, exclusively by the PA.

In this light, it should be recalled that the European Union has in recent years more actively undertaken to construct a common position and regional legal framework in the field of asylum and immigration law; namely in the form of the European Union Refugee Qualification Directive. This unprecedented piece of legislation, as McAdam and others have noted, is the first to seek to harmonise “subsidiary protection” in the EU (see article by Gil-Bazo and Storey).

The purpose of this legal instrument is, inter alia, to extend the protection of the 1951 Refugee Convention and provide protection not only to those that fear the death penalty, execution, torture or inhuman/degrading treatment or punishment abroad, but also, most interestingly, to persons who can prove a fear of a “serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict” (Article 15(c) of the Directive; see note by Mark Symes). Such giving terminology seemingly includes the protective framework afforded by international humanitarian law, either international or non-international, and at the very least, in both cases, the minimal provisions considered in Article 3 common to the Geneva Conventions.

Article 15 is the most alarming example supporting the position that the guidance provided by the Home Office in this particular note, that is meant to serve immigration officers reviewing applications for asylum, does not live up to the extended standards for the protection of asylum seekers outlined in the European instrument. Nevertheless, such a normative assessment would be most accurate when supported by specific cases and determinations. In any case, it is envisaged that an increased number of individuals will be coming to the UK particularly from the Gaza Strip following the recent conflict in the region.