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What the Commonwealth Games can teach us about international refugee law

Yesterday Peter Dutton, friend of the blog, decided that the time was ripe to film a message for athletes arriving on the Gold Coast for the upcoming Commonwealth Games. Because Peter Dutton is a cartoon villain, the message was: "Australia has tough border protection laws". (You'll be shocked to hear that he says this a lot.) But apart from revealing his thirst for xenophobic politics, Dutton's video reveals something underappreciated about the way the global refugee regime works.

The idea of warning competitors in an international sporting event not to overstay their welcome, though kind of grotesque, doesn't exactly come out of the blue in the Australian context. More than a hundred athletes overstayed or applied for refugee status after the Sydney Olympics in 2000, and nearly fifty after the 2006 Commonwealth Games in Melbourne.

Dutton doesn't want a repeat, but it's hard to do much more than this kind of tough-talking, because events like these poke a hole in the way wealthy countries avoid their obligations to refugees. Once people are in the country, they can apply for protection and international law obliges the government to consider their claims and not deport them to anywhere they'd be in danger.

Refugee law does not recognise any numerical limits on that obligation, or much by way of exception: it's a duty the government owes to each individual refugee on its territory or at its borders. That's very demanding, but the loophole is that the law doesn't give a government any obligations towards people who haven't made it to the border. So wealthy governments take all sorts of measures to stop people who might be eligible for refugee status (or similar protection) from getting that far.

Some of them are jurisdictional tricks: some countries designate their airports 'international zones', which don't count as part of the country for the purposes of claiming protection; Australia has infamously declared the whole country as not part of the country for those purposes. (It's not totally clear whether these comply with international law, but the unclarity is largely because there's nobody to enforce that law, so.)

A lot, though, are much more tangible policies. The UK, for example, pulls some particularly nasty tricks. There are big disparities in approval rates for student visa applications from different countries; before the Czech Republic became an EU member, Britain systematically refused entry to people from Roma communities, since they'd have a good claim to asylum; the government pays for the right to conduct its border control in France so that would-be asylum-seekers can't access British territory. The EU as a whole, recognising it would be illegal to deport people to Libya once they've reached Europe, is instead training the Libyan coast guard to stop them leaving.

More generally, the strategy is to require travellers from 'risky' countries to apply for visas before they can travel, and then not give visas to anyone who looks like they might seek protection on arrival. It's not always obvious that this is what's happening, but sometimes the mask slips. The New Zealand immigration website reveals that you won't be considered a 'bona fide' student visa applicant if there are "any circumstances that might mean you may not want to return to your home country", and in particular if you're unlikely to be able to be deported to your home country - that is, if you might have a protection claim that would block deportation.

If there's an issue with athletes from Sierra Leone and Bangladesh claiming protection in Australia after international sporting events, it arises because there are very few other circumstances in which the government lets people from those countries anywhere near Australian territory. The trouble with the Commonwealth Games, from this perspective, is that you can't so easily get away with just not letting people come because they're from somewhere dangerous. So you have to resort to tough video messages and unusually aggressive visa monitoring.

From another perspective, the trouble is that wealthy states have - with the very occasional, sporting exception - figured out how to game the refugee system to minimise the duties they owe to vulnerable people.