St Thomas More and advocating the "Strangers' Case": Modern day "mountainish inhumanity" towards refugees
26 October 2017 - By Rodney Harrison QC
This is a slightly expanded version of an after-dinner address Dr Rodney Harrison QC delivered to the annual Auckland Saint Thomas More Dinner on 18 October 2017.
Easily my favourite piece of Harrison family history concerns my paternal great-grandfather. He was a French merchant seaman whose sea-faring began when press-ganged off a Normandy beach as a youth, into the French Navy. Arrived at the Port of Auckland, he met and fell in love with an Irish lass, my paternal great-grandmother. Outward bound, to avoid detection he waited until his ship was abeam of Tiri Tiri Island at night. He slipped over the side; swam to Tiri; and in turn to the mainland. He settled with his bride on the banks of the Kaipara Harbour. His handy swimming prowess was legendary, until gangrene late in life saw the removal of both his legs just below the knee.
My great-grandfather’s French name, François Le Hérisson – the French for hedgehog – was soon anglicised to “Frank Harrison”. The Harrison surname is therefore not the Scottish patronym that you might expect. And you could say that I hail from a boat person.
I take pride in my illegal overstayer heritage. I venture to suggest that not a few of us here tonight are descended from refugees or overstayers. But I cannot help reflect on the fact that, were my great-grandfather to attempt the same leap of love today, he would confront a hostile immigration system and administrators, wholly without sentimentality, gallic or otherwise.
To set the scene for what follows, I need briefly to outline the position of refugees under New Zealand law.
There are basically two categories of refugees: quota refugees, and spontaneous refugees or asylum seekers. Quota refugees are pre-approved and issued with visas before they get to New Zealand. They therefore do not have to go through the refugee status determination process for which the Immigration Act 2009 provides. The number of quota refugees which we are prepared to admit in any one year is fixed, as the term implies. It currently stands at 750 refugees per year. More of this later.
Spontaneous refugees or asylum seekers have to actually make it to New Zealand before claiming refugee status. Today, with intensive screening of inbound travellers and New Zealand’s remoteness, getting here in order to make a refugee status claim is no mean accomplishment in itself. The Immigration Act provides for a two stage refugee status determination process, first at Refugee Status Branch level and on appeal before the Immigration and Protection Tribunal. (The Act also provides for protected person status under both the Convention Against Torture and the Covenant on Civil and Political Rights, but that need not detain us tonight.)
Refugee status determination essentially turns on whether the claimant qualifies as a refugee in terms of the Article 1 definition of “refugee” in the Refugee Convention. Unusually, the Refugee Convention is directly imported into our statute law as Schedule 1 to the Immigration Act. That involves both an “inclusion” test, and an “exclusion” test.
Under the inclusion test, a refugee is a person who has a well-founded fear of being persecuted in his or her home country, for a “Convention reason”. The prescribed Convention reasons are “race, religion, nationality, membership of a particular social group or political opinion”. For a fear of persecution to be “well-founded”, there must be a real, as opposed to a remote or speculative, chance of it occurring, judged objectively.
The main exclusion test, under Article 1F of the Convention, is aimed at excluding refugee claimants who have committed very serious wrongdoing such as war crimes or crimes against humanity. In most cases, exclusion will not be at issue. When at issue, as it famously was in the Ahmed Zaoui case, it can give rise to the most extraordinary and grave allegations and consequences for life, limb and reputation.
The Refugee Convention was concluded at Geneva on 28 July 1951. Initially it applied only to persons who had become refugees as a result of events occurring before 1 January 1951 (in essence, as result of World War II and its immediate aftermath). By subsequent Protocol of 31 January 1967, that temporal limitation was entirely removed. It is trite to say that in today’s world, the Refugee Convention is having to operate under very different conditions to those which lead to its inception.
That brings me to Saint Thomas More, and advocacy for “the strangers’ case”. Better known to me - a life-long wishy washy agnostic - as Sir rather than Saint Thomas More, I will simply call him Thomas More. Thomas More’s relevance to today’s world-wide refugee crisis harks back to a fascinating combination of actual historical occurrence and long-lost Shakespeariana.
The historical event involving Thomas More occurred on what became known as Evil May Day, 1 May 1517, precisely five hundred years ago. For well over 200 years prior, some 64,000 foreigners rich and poor had crossed the English Channel from Europe in search of better lives. In London at least, the local inhabitants blamed the foreigners for unemployment and loss of culture. Incendiary xenophobic communications, from the pulpit and posted on public buildings (one on the door of St Paul’s Cathedral) – rather than today’s tweets - stirred tensions and unrest. The migrants were blamed for many of London’s problems and their mass expulsion called for. Attacks on them became common.
On Evil May Day, a mob of at least a thousand men and boys armed with stones, bricks, bats and other weapons attacked the foreigners and looted their homes. The young Thomas More, then the City’s Deputy Sheriff, bravely confronted the rioters and tried to reason with them. However, his attempt at calming the rioters came to nothing, when the frightened householders under attack retaliated by throwing down stones and hot water from their windows, enflaming the situation ("Under the Tudor Rose, Evil Mayday 1517").
This incident was included in a play written some 80 years later called The Book of Sir Thomas More. Performance of the play was promptly banned, but the manuscript was later edited and in part rewritten, by William Shakespeare, amongst others. Shakespeare contributed and wrote 147 lines of dialogue at least, which he placed in the mouth of Thomas More. We know this because, amazingly, the single folio page containing the speech is preserved in the British Library. It is the only play folio in Shakespeare’s own hand, of all his plays.
The Book of Sir Thomas More has since been performed, in particular with Sir Ian McKellan as More in 1964. Thomas More’s powerful Shakespearean call to empathy for the “wretched strangers” includes the following lines:
Grant them removed, and grant that this your noise
Hath chid down all the majesty of England;
Imagine that you see the wretched strangers
Their babies at their backs and their poor luggage,
Plodding to the ports and coasts for transportation,
And that you sit as kings in your desires,
Authority quite silent by your brawl,
And you in ruff of your opinions clothed;
What had you got? I’ll tell you. You had taught
How insolence and strong hand should prevail,
How order should be quelled. And by this pattern
Not one of you should live an aged man,
For other ruffians, as their fancies wrought,
With self same hand, self reasons, and self right,
Would shark on you, and men like ravenous fishes
Would feed on one another …
Say now the king …
Should so much come to short of your great trespass
As but to banish you, whither would you go?
What country, by the nature of your error,
Should give you harbour? Go you to France or Flanders,
To any German province, to Spain or Portugal,
Nay, any where that not adheres to England,
Why, you must needs be strangers. Would you be pleased
To find a nation of such barbarous temper,
That, breaking out in hideous violence,
Would not afford you an abode on earth,
Whet their detested knives against your throats,
Spurn you like dogs, and like as if that God
Owed not nor made not you, nor that the claimants
Were not all appropriate to your comforts,
But chartered unto them, what would you think
To be thus used? This is the strangers’ case;
And this your mountainish inhumanity.
Thomas More’s brave advocacy of the “strangers’ case” calls to mind the burdens and tribulations of our beleaguered and unappreciated refugee bar. The preparation and advocacy for refugee claims, itself, is both complex and hugely challenging. As the Immigration and Protection Tribunal itself has noted, citing eminent English authority (DS (Iran)  NZIPT 800788 at  (quoting Sir Stephen Sedley)) the “process of refugee status determination has aptly been described as inherently one of the most challenging in the legal world; [one which] involves making ‘a possible life-and-death decision extracted from shreds of evidence and subjective impressions’, in a jurisdiction which ‘has neither the falsifiability of a science nor the completeness of an art’”.
Factually and practically, refugee cases will often provide high-stakes and high-pressure professional challenges. They may also involve complex legal problems, the wide-ranging legal sources for which can be our domestic statute law and refugee jurisprudence; other countries’ refugee jurisprudence; academic writings on the Refugee Convention and on refugee jurisprudence; and international human rights law.
Were these the only challenges faced by the refugee bar, all that would be demanding enough. However, as a seriously concerning recent two part article in the ADLS Incorporated LawNews reveals ["Last refuge - the unsustainability of practising refugee law in New Zealand", LawNews issues 22 and 26, 7 July 2017 and 4 August 2017] this “most draining and demanding” of practice areas imposes huge burdens, in other respects. Refugee law practitioners have to battle not only the legal aid system (most refugee claimants being, unsurprisingly, impecunious). They must also confront unaccommodating if not dysfunctional refugee determination processes, certainly at Refugee Status Branch level. The refugee bar is in the unenviable position of having to deal simultaneously with two unsympathetic bureaucracies, the Refugee Status Branch as part of Immigration New Zealand and the legal aid system.
Refugee lawyers must also cope with the demanding personal and social work-type needs of their often highly traumatised and disadvantaged clients, many of whom do not speak English. Client suicide attempts – sometimes actual suicides - are not uncommon. Social worker assistance previously provided for refugee claimants has been discontinued by the Refugee Status Branch. So refugee lawyers are forced to operate as unpaid social workers for refugee clients and their families, if only to ensure that they are in a fit state physically and mentally to pursue their claims for refugee status.
Needless to say, none of this time-consuming extra work is remunerated.
Thanks in large measure to the work of the Criminal Bar Association, the legal profession as a whole now has a heightened awareness of the importance to society of the work done by the criminal defence bar, and an appreciation of the financial and other burdens of practice in that area. The even heavier burdens and greater challenges faced by the refugee bar are, I venture to suggest, much less appreciated. If its leaders such as my fearless colleague and good friend Deborah Manning are to be believed, the refugee bar today faces a genuine crisis. Experienced refugee law practitioners are falling away in significant numbers.
Recently in Australia, the Minister of Immigration has labelled refugee lawyers providing pro bono legal help to asylum seekers as “un-Australian” – apparently, not intended as a compliment. Over here, however, “Un-New Zealand-ish(?), or “un-Aotearoan” seem unlikely to catch on.
Even so, if the “strangers’ case” is to have the advocacy it needs, the legal profession and specifically professional bodies need to be more supportive of the refugee bar, and more aware of the difficulties and pressures they face. The larger firms could look to sharing some of the burdens of this area of legal practice, by treating refugee work by their junior lawyers, perhaps alongside more experienced practitioners, as part of the pro bono component of their practices.
Harking back to Evil May Day as confronted by Thomas More, these days in the so-called civilised world we generally find other means of repelling and expelling refugees – the modern day strangers – than mob violence. Refugees and other migrants remain today the easy target for the populist and the xenophobe that they were 500 years ago; but the means employed may be markedly different. Witness last year’s United Kingdom Brexit vote, for example,
However, at least for now, we can look to the USA under Trump, and Australia under its politicians of all stripes, for more perverse examples.
Donald Trump’s racist and irrational executive orders and attempted freeze on both the USA’s refugee intake, and even its returning “resident aliens” were his very first step on taking office as President. More recently, he has halved the United States’ Obama-era quota refugee intake. Our neighbour Australia’s savage and shameful offshore refugee detention camps are well known, and really need no further condemnation from me. (The powerful full-length documentary "Chasing Asylum" - www.chasingasylum.com.au and recently shown on Sky Rialto Channel - should be made compulsory viewing for all Australians, and indeed anyone with a concern about fundamental human rights).
Both of these aberrations ludicrously converged, during the notorious first Trump/Turnbull telephone conversation on 28 January this year. The day before, Trump had both signed his first executive order and learned of a “resettlement agreement” which Australia had entered into with the former Obama administration. Under that agreement, the USA had agreed to take between 1250 and 2000 refugees from the internment camps on Nauru and Manus Islands, in exchange for rejected US illegal immigrants.
The transcript of that conversation, only recently released, is worth reading, even if for the squirm factor alone:
Turnbull: They are basically economic refugees … we know exactly everything about them.
Trump: Why haven’t you let them out? Why have you not let them into your society?
Turnbull: Okay, I will explain why. It is not because they are bad people. It is because in order to stop people smugglers, we had to deprive them of the product. So we said if you try to come to Australia by boat, even if you think you are the best person in the world, even if you are a Nobel Prize winning genius, we will not let you in. …
Trump: Malcolm, why is this so important? I do not understand. This is going to kill me. I am the world’s greatest person that does not want to let people into the country. And now I am agreeing to take 2,000 people and I agree I can vet them, but that puts me in a bad position. It makes me look so bad and I have only been here a week. …
I hate taking these people. I guarantee you they are bad. That is why they are in prison right now. They are not going to be wonderful people who go on to work for the local milk people.
Turnbull: I would not be so sure about that. …
Trump: Well, maybe you should let them out of prison. …
Does anybody know who these people are? … Are they going to become the Boston bomber in five years? Or two years?
Turnbull: Let me explain. We know exactly who they are. They have been on Nauru or Manus for over three years and the only reason we cannot let them into Australia is because of our commitment to not allow people to come by boat. Otherwise we would have let them in. If they had arrived by airplane and with a tourist visa then they would be here. …
[In return] we are taking people [that] the previous administration … were very keen on getting out of the United States. We will take anyone that you want us to take. The only people that we do not take are people who come by boat. So we would rather take a not very attractive guy that helps you out, than to take a Nobel Peace Prize winner that comes by boat. That is the point.
Trump: What is the thing with boats? Why do you discriminate against boats? …I think it is a horrible deal, a disgusting deal … I have had it. I have been making these calls all day and this is the most unpleasant call all day. Putin was a pleasant call. This is ridiculous.
The official statement which followed simply but movingly asserted, that both leaders had “emphasised the enduring strength and closeness of the U.S.-Australia relationship” …
Trump – Turnbull shows how not to have a conversation about the refugee crisis. In my view, as New Zealanders, we need to have that conversation, and the legal profession can and should attempt to make it as informed as possible. The conversation I would like to see us have concerns how many and what kinds of refugees we accept.
First off, what kinds of refugees should New Zealand be prepared to accept? In the case of refugee status claimants coming here who qualify in terms of the Refugee Convention, there can only be one answer: we are obligated to take them. But as I observed at the outset, today’s world gives rise to a much wider range of humanitarian concerns than were in contemplation mid-last century. Poverty and famine, the impact of climate change on low-lying small states, and civil war result in vast numbers of people seeking refuge in more fortunate countries such as ours.
Generally speaking, those suffering the effects of poverty and natural disaster, indeed even civilians displaced by civil war, do not fall within the Refugee Convention definition of “refugee”. The twin requirements, that the feared individual persecution be both at the hands of “human agency” and for one of the Convention reasons namely race, religion, nationality, political opinion or membership of a social group, mean that so-called economic and climate change refugees will ordinarily fail to qualify. The Immigration and Protection Tribunal and the superior Courts have consistently so held. (Refer in particular to Teitiota v Chief Executive, MBIE  NZHC 2125,  NZAR 162;  NZCA 173,  NZAR 688;  NZSC 107)
Should we broaden our conception of who qualifies as a refugee? The Green Party election policy on refugees included the creation of a new “humanitarian visa” for climate refugees from the Pacific, with an initial ceiling of 100 people a year. However, any initiative along these lines needs to be on top of our fundamental commitment at international law to accept Convention refugees. Equally, it must not be seen as in any way discharging New Zealand’s obligations as a developed country, to assist those smaller states particularly vulnerable to climate change with managing the serious and pressing problems they face in situ.
Secondly, should we be accepting more refugees? Are we pulling our weight? Before addressing these questions, a few basic facts and figures (mainly derived from the UNHCR Report "Global Trends: Forced Displacement in 2016", especially the Annex, Tables 9 and 26).
World-wide, there is a massive humanitarian and refugee crisis. The UNHCR reports that as at year end 2016 there were 65.6 million “forcibly displaced” individuals world-wide, of whom 24.3 million were refugees or asylum seekers. These are all time record levels. The refugee burden is disproportionately shouldered by the less developed countries – although we tend to hear more of the difficulties faced by prosperous countries such as Germany. In 2016, Uganda received 415,000 new refugee arrivals, most from neighbouring south Sudan. Since August this year, at least 519,000 Rohingya Muslims have fled persecution in Burma to neighbouring Bangladesh (as reported in the New Zealand Herald of 14 October 2017).
In response, on 19 September 2016 the United Nations General Assembly unanimously adopted the New York Declaration for Refugees and Migrants. The Declaration has been described by the UN High Commissioner for Refugees as marking “a political commitment of unprecedented force and resonance”, and as filling “a perennial gap in the international protection system – that of truly sharing responsibility for refugees”. It reaffirms the Refugee Convention as the foundation of the international refugee protection regime. The Declaration also includes both a commitment to “a more equitable sharing of the burden and responsibility for hosting and supporting the world’s refugees”, and encourages countries with resettlement programmes to consider increasing them (Resolution 71/1, 3 October 2016, paras 65, 68 and 78. See www.unhcr.org/new-york-declaration-for-refugees-and-migrants.html).
Despite the urgency and magnitude of this world-wide crisis, its current impact on New Zealand is negligible. We are the only country in the world that receives fewer asylum seekers than quota refugees. This is because of our geographic isolation and also our strict screening of inbound travellers. Over the last fifteen years, these factors have meant a reduction of about 75% in the level of asylum seekers succeeding in getting here in order to claim refugee status. In 2016, New Zealand had 570 applications for refugee status from asylum seekers, of which approximately half were rejected.
Ever since the quota refugee system was established in 1976, our annual refugee quota has remained at 750. In 2018, it is due to increase to 1000. The quota refugees are thoroughly screened, by the UNHCR, by Immigration New Zealand, and by various security agencies. We reject as undesirable about 20% of those offered to us as quota refugees. Our overall refugee intake – both quota refugees and asylum seekers successfully claiming refugee status – is currently less than 2% of our overall net immigration into the country.
In terms of our refugee intake, we even fail to compare with Australia, with its repugnant treatment of asylum seekers. Australia actually accepts five times more refugees per head of population than we do. Canada, nearly nine times more. Per capita, our refugee intake ranks 95th out of 196 countries, or 121st based on relative GDP.
Any discussion of a substantial increase in our annual refugee quota requires understanding of a fundamental point. Our humanitarian obligations towards refugees and level of refugee intake, and the contentious socio-political question whether we need more or fewer immigrants, are two entirely separate and different issues. This crucial distinction has even been acknowledged by Winston Peters, that implacable opponent of current immigration levels.9 As lawyers, we need to ensure that it continues to be clearly drawn and made, in any public debate about refugees.
As mentioned, next year the refugee quota is set to increase to 1000. That is woefully inadequate. Indeed, it makes our support for the New York Declaration empty words. The Labour Party’s election policy was to increase the quota to 1500 refugees a year over three years. That is little better. By contrast, Green Party policy was to immediately double the existing quota to 2000, increasing to 4000 by 2023 with a further 1000 resettled by Churches and other NGOs.
New Zealand has shown chronic indifference to and lack of direct engagement with the current refugee crisis. To describe that state of affairs as the product of our combined wilful ignorance and wilful blindness is, if anything, charitable. We must heed the reproach of Bertolt Brecht:
When evil-doing comes like falling rain, nobody calls out “stop!”
When crimes begin to pile up they become invisible.
When sufferings become unendurable the cries are no longer heard.
The cries, too, fall like rain in summer.
New Zealanders, including the legal profession, must respond to the refugees’ cries of suffering. Even if it seems only a drop in the bucket, a substantial increase in our annual refugee quota must be part of that response.
Thomas More’s voice of reason in defence of a hated minority, raised full 500 years ago, should inspire all lawyers to advocate the “strangers’ case” today, with the same commitment and bravery. After all, what could possibly be a more robust and empowering precedent, than a 500 year old stand upon principle?