New Scots: refugee integration strategy 2018 to 2022

Context

International Human Rights Instruments

The human rights of refugees and asylum seekers are protected by various international human rights instruments. The Universal Declaration of Human Rights ( UDHR), ^[20] adopted by the United Nations in 1948, proclaims the fundamental human rights to which all people are entitled. The rights were translated into binding obligations in international law through subsequent human rights treaties, including the International Covenant on Civil and Political Rights ^[21] and the International Covenant on Economic, Social and Cultural Rights. ^[22] These three instruments constitute what is known as the International Bill of Human Rights. The United Nations has subsequently adopted further human rights treaties, which address specific human rights challenges, including torture, racial and gender discrimination and the rights of children and disabled people.

The UN Convention on the Rights of the Child includes particular focus on child refugees. Article 22 (1) states:

"State Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by another person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties."

The UK was one of the first states to ratify the European Convention on Human Rights ( ECHR) ^[23] in 1951, the Convention was given direct effect in domestic law through the Scotland Act 1998 and the Human Rights Act 1998. The Human Rights Act requires every public authority to act compatibly with the Convention rights and enables human rights cases to be taken in domestic courts. Individuals can bring complaints of human rights violations to the European Court of Human Rights, once all domestic possibilities of appeal have been exhausted.

Further legal protections for human rights and fundamental freedoms, including in relation to wider equality matters, exist in European Union law. These are set out in the Charter of Fundamental Rights ^[24] and in subject-specific Directives and other instruments.

Some of these protections will continue to be reflected in domestic law after the UK leaves the European Union, although the detailed impact remains difficult to predict.

The Refugee Convention

The UK is a signatory to the 1951 UN Convention relating to the Status of Refugees (Refugee Convention) ^[25] and the supporting 1967 Protocol. The 1951 Convention is the key legal document defining who a refugee is, establishing the rights of refugees and setting out the responsibilities of signatory states.

Article 1(A) of the 1951 Convention defines a refugee as a person who:

"Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it."

According to international law, everyone who satisfies this definition is a refugee.

The 1951 Convention does not prescribe a specific mechanism through which states should determine refugee status. The recognition of refugee status is declaratory, not constitutive. This means that a person does not become a refugee because they are recognised; rather, they are recognised because they are a refugee.

Article 14 of the Universal Declaration on Human Rights states that everybody is entitled to seek and enjoy asylum. International law does not distinguish between refugees and asylum seekers, although states often do. A person who has not yet received a decision on their application is referred to as an asylum seeker or person seeking asylum.

The criteria for protection under the 1951 Convention are strict. States have recognised that a number of people who do not fall within the scope of the 1951 Convention may nevertheless be in need of protection. This kind of protection is known as 'complementary protection'. People seeking protection in the UK may also be granted protection under Article 3 and Article 8 of the European Convention on Human Rights and afforded immigration leave.

Devolved and Reserved Matters – Scotland Act 1998

Under current constitutional arrangements in the UK, certain matters are reserved and are the responsibility of the UK Government. The Scottish Government cannot make laws or decisions which affect these matters, and the New Scots strategy cannot directly address issues which are outside the scope of the Scottish Government, Scottish local authorities and other Scottish organisations.

Asylum is a matter reserved to the UK Government under Schedule 5 of the Scotland Act 1998. ^[26] This includes policy on asylum; the process of considering applications for asylum; the provision of asylum support and accommodation; and the operation of refugee resettlement programmes. The Home Office considers applications for recognition as a refugee and determines whether the 1951 Refugee Convention definition is satisfied.

Many of the services, which are essential to supporting refugees and asylum seekers to settle into communities, are devolved and are the responsibility of the Scottish Government and Scottish local authorities. This includes health, education, legal services (including legal aid) and housing (excluding asylum accommodation). However, there can be restrictions placed on accessing some of these services, where a person has no recourse to public funds.

Scottish Context

A number of strategies and policies support different aspects of integration and day to day life for refugees and asylum seekers and complement the work of the New Scots strategy. While this context is not designed to be exhaustive, it highlights some of the key legislation, provisions and approaches, which will support the strategy during implementation.

The National Performance Framework ^[27] was introduced by the Scottish Government in 2007, and refreshed in 2011 and 2016. In the Purpose and National Outcomes, it sets out a clear, unified vision for Scotland and how actions will improve the quality of life for the people of Scotland.

The Equality Act 2010 ^[28] prohibits direct and indirect discrimination, harassment and victimisation. It protects people from discrimination on the basis of the protected characteristics of: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation. Everyone will have one or more of the protected characteristics, including refugees and asylum seekers. Therefore, while status as a refugee or an asylum seeker is not in itself a protected characteristic, they will benefit from the protection afforded.

The Public Sector Equality Duty ^[29] requires the Scottish Government and other public authorities to have due regard to the need to eliminate unlawful discrimination, advance equality of opportunity and foster good relations between people with different protected characteristics. Public authorities across Scotland must publish and report on Equality Outcomes. The Scottish Government's Equality and Mainstreaming Report 2017 ^[30] outlines how the Scottish Government is working to progress equality as a policy maker.

The Fairer Scotland Action Plan ^[31] was launched in 2016. Based on five ambitions for 2030, the plan set out 50 concrete actions to reduce poverty and tackle inequality. Fairer Scotland work aims to benefit everyone, including refugees and asylum seekers, by reducing inequality. A progress report was published in November 2017. ^[32]

The Race Equality Framework for Scotland ^[33] was published in 2016, setting out a long-term ambition and approach to promoting race equality and tackling racism and inequality between 2016 and 2030. An independent Race Equality Framework Adviser was appointed to help implement the Framework, and an Action Plan published in December 2017 sets out the key actions that will drive positive change for Scotland's minority ethnic communities. ^[34]

A Fairer Scotland for Disabled People ^[35] sets out five long-term ambitions and over 90 cross-government commitments ranging from education and health to transport, with the aim of making life for disabled people in Scotland fairer. The delivery plan for these commitments has been shaped by the experiences of disabled people and the insights of disabled people's organisations. 20% of people living in Scotland have a long term limiting health problem or disability. This will include some refugees and asylum seekers. Refugees, who have come to Scotland through the UK Government's resettlement programmes, are selected based on UNHCR criteria for vulnerable groups. This includes refugees with medical needs or disabilities.

Equally Safe ^[36] is Scotland's strategy for preventing and eradicating violence against women and girls. It aims to ensure women and girls live free from violence, abuse and the attitudes that help perpetuate it and covers domestic abuse, rape, sexual assault, forced marriage, female genital mutilation and prostitution. Many refugee and asylum seeking women and girls have faced these issues and may require specific support as they settle in Scotland.

Scotland's National Action Plan to Prevent and Eradicate Female Genital Mutilation ( FGM) ^[37] recognises that FGM is a complex and often hidden form of abuse. It builds on work taking place across Scotland to bring best practice together and take all necessary steps to protect women and girls from harm. Under the Female Genital Mutilation (Scotland) Act 2005, ^[38] it is a criminal offence to have FGM carried out in Scotland or abroad. FGM does not solely impact refugee communities, but it can be a reason that women and families need to seek protection outside their country of origin.

The Trafficking and Exploitation Strategy ^[39] was published in 2017. It was a requirement of the Human Trafficking and Exploitation (Scotland) Act 2015, ^[40] which introduced a single offence for all kinds of trafficking for the first time and strengthened the existing law. It aims to make Scotland a hostile place for human trafficking, with the ambition to ultimately eliminate human trafficking and exploitation. The approach involves supporting and protecting victims, disrupting the activities of perpetrators and addressing the conditions which foster trafficking, both in Scotland and elsewhere. Refugees and asylum seekers may have been trafficked on their journey to the UK and can be vulnerable to exploitation by traffickers and others as they seek safety.

Hidden Lives – New Beginnings ^[41] was published by the Scottish Parliament's Equalities and Human Rights Committee in May 2017, following its Inquiry into Destitution, Asylum and Insecure Immigration Status in Scotland. The Scottish Government responded formally to the Committee in July 2017 ^[42] and committed to ensuring that issues in relating to refugees and asylum seekers, that are within scope, will be taken forward by the New Scots strategy.

Tackling Prejudice and Building Connected Communities ^[43] set out a programme of work to tackle hate crime and build community cohesion in response to the recommendations made by the Independent Advisory Group on Hate Crime, Prejudice and Community Cohesion. ^[44] Some refugees and asylum seekers experience hate crime. Work to tackle all hate crime across Scotland should benefit refugees and asylum seekers, helping them to feel safer and less isolated within their communities.

The Children and Young People (Scotland) Act 2014 ^[45] placed in statute key elements of Getting It Right For Every Child ( GIRFEC) ^[46] . GIRFEC is Scotland's national approach to improving the wellbeing of children and supports children, young people and their parents to work in partnership with the services that can help them. This includes refugee and asylum seeking children and their families and ensures that they are able to access the services they require to settle in Scotland. The Act also provides access to services for Unaccompanied Asylum Seeking Children ( UASC) as care leavers. Local authorities provide accommodation and support through and beyond their asylum application, including access to education, ESOL (English for Speakers of Other Languages) and other services, which supports integration into their local communities.

The Children (Scotland) Act 1995 ^[47] requires local authorities and other public bodies to become corporate parents for unaccompanied children and young people, with statutory duties to safeguard them and support them towards positive destinations and independence under section 25 of the Act. This includes UASC, who are cared for by the local authority where they first arrive.

The Scottish Guardianship Service ( SGS) was set up in 2010 to support UASC. It is funded by the Scottish Government and provided by Aberlour Child Care Trust and the Scottish Refugee Council. Its main aim is to provide advice and support to the unaccompanied child and the local authority, as the child navigates the asylum and trafficking processes. The SGS also assists with the integration of the child into their community, school and new friendship networks. The Human Trafficking and Exploitation (Scotland) Act 2015 ^[48] set out a statutory service to provide for the role of the Independent Child Trafficking Guardian ( ICTG). The ICTG will be introduced in 2018 and will supersede the current SGS service model.