Dina Nayeri responds to the proposed ‘Illegal Migration Bill’.

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This piece is part of a collaboration between English PEN and Counterpoints Arts in response to the UK government’s proposed ‘Illegal Migration Bill’. For this PEN Transmissions series, writers have been given an open platform to write an essay in response to the Bill. Counterpoints Arts coordinate Refugee Week, a UK-wide festival celebrating the contributions, creativity and resilience of refugees and people seeking sanctuary. The theme for Refugee Week 2023, taking place 19–25 June, is Compassion.

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Often at turbulent times I wonder, am I being too simple? At university I loved philosophy and literature. I loved moral dilemmas – the difficult calculus between two imperfect outcomes. Ultimately, I liked making choices, rather than stumbling into them. But my business and law friends would say the world is much too complex for idealism: full of uncomfortable trade-offs, urgent side-tracks, costly surprises, and shortages of time, money, and information. And they were partly right. To have impact, I grew convinced, one must be mired in the practical. Roll up your sleeves, dig deep, identify every logistical hurdle. So, I bought a black suit and studied economics and business for the next decade. But nowadays I think: is it right for our leaders to be so neck-deep in sticky trade-offs that no one is thinking about the larger picture at all, the universal human ideals on which we built our societies?

I believe that most people don’t wade into serious debate because they trust others (whom they mistake for smarter) to tell them what to think. They feel unequipped to tackle the complexities, embarrassed about asking big, obvious questions.

But I like big, obvious questions, and this isn’t an essay about the complexities.

As I write this, the UK is debating the proposed ‘Illegal Migration Bill’. Anyone who arrives in the UK by a route deemed illegal, including those crossing the Channel in a small boat, will have their claim deemed inadmissible. They will be returned to their country or to a ‘safe third country’. They will be banned from ever claiming UK asylum. They will be denied access to the UK’s modern slavery protections. They will be shut out of the asylum system – no matter what forced them into that boat. And, since one cannot claim asylum unless physically present in the UK, and since the UK is an island, then no person in danger can flee into the UK planning to claim asylum. They must be recognised a refugee before arriving, have family or a sponsor in the UK, or be from specific countries that are part of existing UK resettlement schemes, such as Ukraine or Hong Kong.

To my simple mind, this means that the UK has closed access to asylum: you can no longer arrive in the country by the means you deem safest for you (as the Refugee Convention intended), tell your story, and beg refuge from a compassionate government. And it means that the UK can bar asylum seekers in ways that countries bordering places of conflict can’t – which means that those countries, who are poorer than the UK, must take on a disproportionate share of the displaced.

I think about the 1951 Refugee Convention. Do I properly understand it? I know that, in this agreement, the UK committed to protecting the rights of those seeking asylum, to housing and educating them, to providing them opportunities to work, and to honouring the principle of non-refoulement (not sending people back into danger). In the Refugee Convention, the UK promised this:

Refugees unlawfully in the country of refuge

The Contracting States shall not impose penalties, on account of their illegal entry of presence, on refugees who, coming directly from a territory where their life or freedom was threatened, . . . enter or are present in the territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

I interpret those words first as: There is no ‘illegal entry’ if a refugee immediately claims asylum. They are not to be denied refuge as a penalty for their path.

Then I try to read this through the lens of a hostile UK politician, someone whose only goal is to keep people out. I close my eyes and imagine Suella Braverman’s laughter as she poses in front of facilities in Kigali being built to house deported asylum seekers. I open my eyes and I read again.

Ah, now I see where they found their loophole. The phrase ‘come directly’. This must mean that the promise is limited to the first country on whose soil the displaced set foot – probably a fair allocation of newcomers in 1951, when you could stow away on ships and enter a coastal country before facing its immigration officers. Not so fair in 2023, when you can’t get on a plane without a passport, and your only escape is into a bordering country.

Nowadays, strict adherence to ‘directly’, protects the faraway countries.

I wonder if, at the gathering of the signers of the Refugee Convention, the countries situated farther from the atrocities were quietly scheming about that loophole. Did they plan one day to use it to offload their responsibility onto others? I don’t think they were; I don’t think they did. In the previous decade, refugees had fled Hitler’s atrocities from all over Europe. No one was untouched by war, and no one was protected by that word ‘directly’.

Then I think about fairness.

Is it fair for an island nation to shirk its share of the responsibility? What if that island nation is one of the rich ones? What if that island nation has a long history of imperialist consumption: invading, and taking, and enslaving, and pillaging, enriching generations of its children through the chaos it has left across its so-called commonwealth (I think of the origins of ‘commonwealth’: the wellbeing of many).

I keep reading the 1951 Refugee Convention and I think about that bedrock principle, nonrefoulement – not sending people back into danger – and how the technical definition of refugee has been used to do precisely that: send people back into danger. A ‘refugee’, according to the Convention, is someone who has ‘a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’. Written in the wake of the Holocaust, what could the framers of this document have meant by ‘membership in a particular social group’? Humanitarian lawyers argue that they meant to write a phrase that covered all future threats to life and safety. They didn’t know what horrors the world would face next, and so they created a category that covered everything else (‘social group’ being the broadest term one could come up with in a legal document). But the lawyers for strident gatekeepers have made all kinds of arguments, in the US and across Europe, to limit the definition of ‘social group’. It can’t include women. It can’t include abused women, it can’t include families, and so forth.

Fortunes have been wasted on arguing such legal details, so that governments can say ‘Yes, we believe you are in danger but not in the right kind of danger. So refoulement doesn’t apply here. Your death is on you, not on us’. And yet, one wonders, has anyone considered what the authors of the Refugee Convention meant to promise? Or their fear after the genocide that Europe had just endured? That’s too simplistic, the lawyers argue, and so they keep parsing the language, with the hope of expelling one more abused mother.

Often at this point, my simple mind goes to Rawls’s notion of the ‘original position’. It’s a thought exercise so rooted in the imagination that it’s silly to argue over its impossibility – it’s a fantasy. Imagine, Rawls asks, that you could create the systems and structures of the world, and allocate all its resources, before you knew which body you’d be born into. What kind of a world would you create? 

I’d look at the statistics and think, I’ll probably be a wage-earning labourer my whole life. I’ll probably live in Asia. I’ll be poor, struggling with income insecurity, food insecurity. At some point in my life, I might be displaced.

Knowing this, I would tax the rich heavily on income and capital gains (leaving enough to give talented people incentive to strive – though I believe they would anyway. Still, my original position society wouldn’t be fully socialist). I’d take inherited wealth above a certain threshold (leaving the rich a few houses, a few boats – nothing grotesque: you can’t own an island or ten planes) and use it to end world hunger. I’d allow asylum seekers to work. I’d make borders easier to cross. If you’re about to scoff about resources and economic externalities and how this plan might affect the middle class, remember that, in the original position, nobody is middle class or British or highly educated or unusually talented. In this thought exercise, we look to the median to guess our situation. In the original position, we are all (most likely) a bicycle messenger or a farmer in rural Asia. Half the world lives on five or six dollars a day, and so there’s a 50% chance of earning below even that.

From the original position, I would see clearly that the hands greedily dipping into the communal pot belong to the rich, not to refugees. That the wealthy are consuming my labour, while goading me to fight for that privilege with those in more wretched positions: Look, they say, the refugees are taking your jobs.

But we don’t think about original positions much outside our philosophy classrooms or children’s books. Because it’s too simple. Because, after all, our leaders aren’t in the original position. They have interests: elections to win, friends to enrich, wealth to protect. They want to be seen as the strongmen who stopped the boats.

Will denying access to modern slavery protections (a cruel phrase to have to write) deter refugees from boarding boats? Does a father pushing a dinghy into freezing water at night-time, his tattered trainers sinking into wet sand, think about the merits of his future case?

I close my eyes and imagine a person climbing into a small boat. I place my hand on their beating heart and try to find entry into their mind. I try to forget the aggregate – an individual is more easily imagined. I conjure the refugees I’ve met: the mother who ran from a vengeful brother, a moral police officer obsessed with killing her; or the young woman running from the smuggler who wanted to break her, to possess her forever. Both were chased by frightening, resourceful men. I imagine a mother running with a child on her back. Maybe she hears of a charity in London, or a cousin in Colchester. Maybe a friend phones a church in Brighton, and that pastor’s kind voice gives her courage. Not every choice is calculated. Maybe she speaks English and knows she can navigate life better here. Maybe the smuggler is nipping at her heels, and she runs out of breath and throws herself into any vehicle heading far away.

No one crosses dangerous waters in a flimsy boat because that’s a reasonable option. The boat is always the last – only – choice. Everyone on board a packed dinghy has been forced onto it. No law will keep burning feet from leaping away. When death is behind you, you run, jump, swim. You don’t think of the rules and regulations, the legal difficulties that await on safe shores. Only the safe shores.

But this is rhetoric, unworkable idealism. The details, the logistics, the resources and definitions – these matter far more, we’re told. Maybe so. 

Two memories return from my school days.

The first is from business school. At lunch, a friend studying law told me a useful tactic she’d learned: if you have more resources than your opponent, the best way to win is to outlast them. Use up their resources. Drown them in paperwork. Waste their legal time, so that their lawyers don’t have enough of it to craft a good strategy. You can win a debate that way, too: just throw so much detail at your opponent that they’ll get confused. Too busy fighting each individual point, they’ll forget the larger argument. Distract and win.

The second memory is from my third-grade maths class, just before my family fled from Iran, and we became refugees. I sat my wooden desk trying to work out a fraction, struggling to visualise 27⁄108. My teacher knelt beside me and whispered into my ear: in order to understand a problem, you must first simplify.

Dina Nayeri is the author of Who Gets Believed? When the Truth isn’t Enough.

Photo credit: Anna Leader

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