Kent MPs call for pushback of refugees heading for UK
Priti Patel has tasked the acting attorney general, Michael Ellis, to draw up the legal basis for pushing back, into French waters, refugees who cross the Channel in small boats. This follows recent representations from many Conservative MPs, especially Kent MPs Craig Mackinlay, Lee Anderson and Natalie Elphicke.
Mackinlay has dismissed concerns about any potential illegality as “diplomatic niceties”, while Anderson argues that “we should drop these illegal immigrants, not migrants, off on a French beach and send the French government a bill for the cost of the journey”.
Priti Patel has made no secret of her frustration with the numbers arriving from France on a daily basis and her inability to put an end to the crossings. She is supported in this by Boris Johnson.
Brexit has reduced our refugee options
Prior to leaving the EU, the UK was part of the Dublin III agreement whereby an asylum seeker could be returned to the EU country of entry for their application to be processed. Under Dublin III, the EU collectively supports the processing of refugees and their initial accommodation prior to their onward resettlement destination.
The UK took part in these arrangements to a certain extent, in that it paid its share and returned asylum seekers (though not many until the last few months before we left the EU). But it refused to take its share of refugees and rarely provided asylum for those making applications from an EU country, even for unaccompanied children applying for family reunion in the UK.
MPs calling for the return of refugees to France seem unaware that our previous capacity to do so derived from our membership of the EU and that, other than bilateral arrangements between the UK and other EU countries, the UK has no legal means of enforcing returns. European countries have indicated that, while the UK takes so few refugees as a proportion of those arriving in Europe, they are not inclined to take back those who do manage to cross the Channel.
The EU approach to refugees
The EU arrangements were introduced in response to the upsurge in refugees in 2015. Since then numbers have remained high but have not been as unmanageable as during the 2015 peak. The current Afghan crisis, coming on top of continued war in Syria, Yemen and South Sudan and the instability in Iraq and Iran, has led EU leaders to reconsider the need for further joint action. The EU has strengthened the Schengen borders and continues to pay Turkey and Libya to host refugees and deny them onward passage.
Italian and Greek authorities have pushed back refugees into Turkish waters and this has been challenged through the European Court of Human Rights. Both Italy and Greece were initially welcoming of refugees but as they hosted tens of thousands with no prospect of onward resettlement, views hardened.
Cooperation with France
It is illegal for any country to enable the passage of refugees through their own countries into another, though France must be sorely tempted to, given the UKs refusal to accept them. While France has accepted many more refugees than the UK, it shares the UK government’s philosophy (as does most of the EU) that deterrence is the primary weapon against people smuggling and migration and that refugees are best supported in, or close to, their country of origin.
France has continued to cooperate with the UK on Channel crossings, as it is in its interests to do so. The French government does not want thousands of refugees congregating around Calais and the northern ports in the hope that, one day, they might make their journey to the UK. Police dismantle the camps that spring up in and around the border as others are demolished, often with considerable violence. And they discourage Channel crossings.
French action against Channel crossings
In July, the Home Office agreed to pay a further £56m to the French border agency to halt the crossings. It is now threatening to withhold the funds. On Saturday 4 September, when a record 826 people crossed the Channel, France intercepted ten boats with 193 people on board, 19 percent of the day’s total.
There is no barrier in law to people setting sail from France (or from the UK) and France cannot force boats in French waters to return to shore. The strategy is focused on deterrence on land – destroying camps and boats, identifying and charging people smugglers, and disrupting departures – but, mostly, the French border force rescues and returns to France those travelling on dangerous boats.
There are hundreds of miles of coast and places from which small craft can sail. Most do so at night and without lights. It is simply too difficult to stop them all. There are an estimated 2,000 refugees close to the French border hoping to cross to the UK, and over 100km of potential launch places to be policed. Refugees may be prevented from crossing on one night, but will return for another attempt. £56 million over the course of a year can be quickly spent for very little gain.
UK pushback policy
The government’s pushback policy (along with its policy for off-shoring asylum claims and detention of claimants, as outlined in the Nationality and Borders Bill) is largely based on the Australian model (which the International Criminal Court has found to be in breach of international law).
There are no international waters separating the UK and France’s 90-mile sea border where refugees cross. This means that British boats would either have to enter French territorial waters, with all the legal, diplomatic and military problems that this would give rise to, or wait until boats are in British waters and attempt to push them back into French waters. Any pushback occurring in French waters would be an infringement on the country’s sovereignty.
Danger of Breaking International Law
Pushing back across a border into a country where the refugee’s life will be at risk is clearly in breach of the 1951 UN Refugee Convention, but the legal position on pushback from within British territorial waters to the waters of a ‘safe’ country is contested. Australia was found to be in breach of international law, but it was returning refugees to unsafe countries, which is expressly forbidden under the convention.
Maritime law requires that all ships rescue other ships or boats in distress or difficulty and take them to the nearest port. UK rescuers bring refugees found in the UK’s territorial waters into Dover or Folkestone. They do not wait until there is a risk of life but will intervene if there is an evident danger. Given the overcrowding on most of the boats and their flimsy nature, rescue is deemed necessary before the situation becomes life threatening; hence the TV footage of rescue services “assisting” refugees to safety and bringing them ashore.
The UK would be in breach of national and international law if it were to act in such a way as to endanger life at sea. The government has indicated that it may need to change maritime law to push back legally and has said that it will only push back where it is safe to do so. Very few boats crossing the Channel would be considered sufficiently robust or spacious enough for this to be a realistic prospect. This is an explicit invitation to people smugglers to ensure boats are not sufficiently seaworthy to withstand pushback efforts.
Understanding Channel crossings
From the comfort of our secure lives in the UK, it seems barely comprehensible that someone would risk their lives crossing the most dangerous commercial shipping channel in the world in a flimsy boat in order to gain asylum in the UK rather than to seek it in France (or any other country through which they have travelled). Many people assume that there must be some other reason, most likely economic, for the journey and that those crossing are not ‘genuine’ refugees.
For most refugees, this last part of the journey after months or even years of travelling and waiting, is no more dangerous or more hostile than what has come before, either in their country of origin or en route. No matter how difficult it is or how hostile the government is when they arrive, people will continue to try to make the crossing.
There are people smugglers whose entrepreneurial skills may increase the demand for migration services, and there are those who profit from trafficking people, often against their will. But for most refugees, the use of a ‘guide’ is essential if they wish to flee violence and have a future. While there is a need, there will be experts to fulfil it.
Some of those who have got to the UK with the help of a guide may be required to ‘pay’ for their journey by steering a boat or forging links for future crossings. The distinction between guide, smuggler, trafficker or even tiller-handler refugee is not as clear-cut or simple as the government’s rhetoric suggests.
The UK remains reliant on the EU for border control
The UK relies on the EU to contain the refugee problem through border controls, agreements with Libya and Turkey to host refugees, and other EU countries being a more popular destination than the UK. Only six percent of refugees want to come to the UK, most of whom have family ties or speak English. Germany, France and Spain are more popular and the UK hosts about 388,000 refugees compared to Germany’s 1,111,300.
Although we have left the EU and no longer fund border controls or refugee assistance, and the UK continues to refuse applications from refugees in Europe or to take its fair share of refugees, it still expects to have the benefits of EU membership such as the return of those who have travelled through a safe country. It makes demands and offers nothing in return.
Most Refugees Seek Asylum On the Continent
The number of refugees attempting to get to the UK is comparatively small, less than 0.08 percent of the world’s displaced people, and they have to show an extraordinary degree of resilience, bravery and initiative to get here. Internationally and within Europe, there is almost no sympathy for the UK’s position and pursuing a policy of pushback would sink the UKs reputation as a humane society.
The government is, very visibly, failing in its promise to control the country’s borders. By constructing, in the public’s mind, refugees as “illegal” immigrants, it has boxed itself into a hard, costly and unforgiving corner from which it is difficult to escape.
The alternative would be to acknowledge that almost all of those crossing the Channel are refugees. They will continue to make the journey no matter the obstacles put in their way. They need and deserve our help and we should find the means to achieve this safely and humanely.
The Refugee Council has just launched an appeal. As the crisis in Afghanistan escalates, help provide urgent support for refugees who’ve lost everything, as they reach the UK.
