Mishcon de Reya announces Climate Migration Project

Climate migration is the movement of people who are driven from their home region due to sudden or long-term changes to their local environment, caused by climate change.

These changes compromise people's well-being or livelihood, and include sea level rises, extreme weather events, water scarcity and land degradation.

In 1990, the Intergovernmental Panel on Climate Change (IPCC) said that the greatest single impact of climate change could be on human migration flows, with millions of people being displaced from their homes by factors including coastal flooding and agricultural disruption (Migration and Climate Change, International Organisation for Migration Geneva (Oli Brown, 2008)).

Since then, climate migration has become a firm reality and analysts have tried to quantify the overall number of individuals that will be displaced by environmental factors in coming years. The UN International Organisation for Migration suggests the figure could be anywhere between 25 million to 1 billion by the year 2050 (According to a 2015 study carried out by the Institute for Environment and Human Security of the United Nations University).

Although there is debate over the number of predicted future climate migrants, we know that every year, millions of people are already being displaced by the impacts of climate change. The majority of displaced individuals stay within their own country, but some are forced to move across borders. The number of displaced individuals is predicted to increase further as our climate continues to shift.

According to a 2020 report by The Internal Displacement Monitoring Centre, in 2019 alone nearly 1900 environmental disasters (the vast majority being weather related) triggered 24.9 million new displacements across 140 countries and territories. This is the highest figure recorded since 2012. The countries with the highest numbers of those displaced were India, the Philippines, Bangladesh, China and the USA (IDMC | GRID 2020 | Global Report on Internal Displacement 2020 (internal-displacement.org))

In many parts of domestic and international law, we recognise that vulnerable individuals and communities require protection. However, current international law does not provide a right to admission and stay for those fleeing to another country in the context of disasters and the effects of climate change.

The 1951 Geneva Convention relating to the Status of Refugees (the ''Geneva Convention'') is the main international instrument of refugee law. The term 'refugee' has a distinct meaning within the context of international law as prescribed by the Geneva Convention. The Geneva Convention does not include climate refugees within the scope of its protection. It has been argued that climate refugees cannot be included within the ambit of the Geneva Convention because the understanding of a "refugee" necessitates the identification of a persecutor and some form of direct discrimination.  In addition, refugee status is conferred to individuals who are outside of their country of origin, and therefore, applying this status to climate migrants would fail to protect the majority of displaced climate migrants who do not cross borders.

Climate migrants are therefore not recognised in any binding international treaty, nor is there an international body that is responsible for identifying, monitoring and ensuring the protection of these individuals. While it is true that the reasons for migration are complex and multicausal, international law does not explicitly address whether and under which circumstances climate displaced persons will be admitted to another country, what rights they have during their stay, under what conditions they may be returned, or address any long term solution.

Whilst this is an immediate issue for those vulnerable communities that are facing the harshest consequences of our changing climate, it is also becoming a major issue for all countries around the world.

Without the law identifying and providing a mechanism for these individuals to be dealt with in an appropriate manner, there is a concern that this current legal (and political) lacuna will leave individuals unprotected and countries overwhelmed.

The concept of climate migration is now attracting increasing attention as policy-makers and scientists work on framing the potential societal effects of climate change and environmental degradation. 

There are also signs that climate migration is beginning to be recognised by international courts.

For example, in December 2020, the appeals court for the Administrative Court of Bordeaux in France overturned a deportation order in respect of a Bangladeshi man suffering from asthma on the grounds that the man's condition was likely to seriously deteriorate were he forced to return to Bangladesh and be exposed to the poor quality of air there.

The case is hailed as being the first of its kind in France and contributes to a growing understanding of the relationship between human rights and the environment.

In addition, a judgment of the UN Human Rights Committee on 23 September 2020 recognised that "the effects of climate change in receiving states may expose individuals to a violation of their rights". As a result, governments should consider the climate situation in countries to which asylum seekers are deported, as the nature of those threats may be prejudicial to the individual's human rights. One of the UN Human Rights Committee members, Kate Schuetze, stated the following in this regard: "The message is clear: Pacific Island states do not need to be under water before triggering human rights obligations to protect the right of life" (amnesty.org).

More recently, on 4 February 2021, President Biden issued an executive order directing his National Security Adviser to investigate and produce a report on the impact of climate change on migration with a view to considering the "options for protection and resettlement of individuals displaced directly or indirectly from climate change" (whitehouse.gov). Although it cannot yet be said what recommendations the report will yield, it is likely to add much needed impetus into the global conversation regarding protection for those affected by climate change.

This year, the UK will host the UN Climate Change Conference of the Parties (COP26) in Glasgow. COP26 will bring together representatives from nearly 200 countries, including world leaders, experts and campaigners to accelerate action towards the goals of the Paris Agreement and the UN Framework Convention on Climate Change.

In recognition of the UK's ambitions for the event, Boris Johnson has appointed Alok Sharma, former Secretary of State for Business, Energy and Industrial Strategy, as full-time President of COP26, focusing solely on driving forward global action to tackle climate change. Alok Sharma has said: ''The biggest challenge of our time is climate change and we need to work together to deliver a cleaner, greener world and build back better for present and future generations.''

The UK Government has made clear statements on its aims to meet the objectives set out by the Paris Agreement, and has recently announced new climate change commitments that will set the UK on course to cut carbon emissions by 78% by 2035. This brings forward the current target for reducing carbon emissions by 15 years.

Climate migration is expected to be on the agenda at COP26, however, when it comes to this specific issue, there is little public information about the UK Government's official position.  

In 2019, the Foreign Affairs Committee published a report titled "Responding to irregular migration: a diplomatic route " which examined current climate crises and analysed how the UK's strategic interests could be protected and furthered through diplomatic means. The UK Government issued a response to the report and its conclusions in November 2019. Part of the Committee's report includes the following passage:

"The FCO welcomes the Committee highlighting the links between climate change and migration. We share the Committee’s view that this policy area requires urgent consideration. While there is no current clear evidence that climate change drives irregular migration, it can amplify other—economic, social and political—drivers. We recognise that climate change will increasingly become a significant factor in driving migration and it is essential therefore that in the UK’s “upstream” engagement, and as part of its global efforts, migration linked to climate change and environmental degradation is given due attention. We should expect the subject to feature at COP26.

The FCO, with DFID and Home Office, is currently undertaking an analysis of the available data and scoping potential policy responses. We expect these to build upon the UK’s strong support to adaptation and mitigation, recognising the existential threat posed by climate change on some communities (e.g. in the Pacific). This is a large and challenging policy field—there is little international consensus yet on these policy issues despite the increasing urgency."

Despite the above recommendations, there continues to be a lack of focus and conversation around climate migration. In recent times, there have been other areas of immigration and immigration policy that have captured the spotlight more potently than climate migration. Examples of this include the new Skilled Worker visa route in light of Brexit and the proposed overhaul of the UK's asylum system as set out in the Secretary of State's 'New Plan for Immigration' policy statement earlier this year. This policy statement does not mention 'climate migrants' or the 'climate' on a single occasion, and is directed more towards tackling well publicised illegal border crossings and the UK's backlog of asylum cases instead. Simply put, from a UK perspective, other areas of immigration policy have taken centre stage over the issue of climate migration.

Clearly, those living in climate impacted communities will, in most cases, move to neighbouring communities/countries. However, it is wrong to assume that the UK will not be impacted by climate migration.

Notwithstanding the impact of environmental incidents occurring within the UK itself (such as the flash flooding in Yorkshire in 2019), there are also many communities residing in the UK from climate-impacted countries, take the UK Bangladeshi community, to cite just one example: it is likely that individuals impacted by climate in the future will seek to migrate to countries where they have existing cultural and family ties where possible. To obtain more accurate data in this regard, we have submitted a Freedom of Information request to the Home Office to seek to ascertain the number of individuals citing climate change or climate related factors as part of their immigration applications to the UK.

There is no specific UK visa category which exists for those wishing to move to the UK as a result of the impacts of climate change in their home country. In theory, a person who does not qualify for protection under the Geneva Convention may qualify for permission to remain in the UK if there are exceptional humanitarian or other compelling reasons at stake. The initial visa is normally issued for three years. Although applicants can apply for an extension, the Home Office will consider the applicant's personal circumstances and whether the original reasons for granting the visa still exist, before deciding whether a further visa is to be granted.

Is it time to address the growing issue of climate migration and create a new visa category that provides a right of relocation to the UK for those needing to move as a result of the impacts of climate change?  This could include, for example, the creation of a new 'humanitarian visa' specifically aimed at those driven from their country of origin due to the impacts of climate change. Other examples, could include family reunification visas and temporary/seasonal worker visas for those adversely impacted by climate change. For further examples, see suggestions raised by the 2018 UN Global Compact for Migration.