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UK asylum laws edge towards murky waters

The British prime minister has suggested changing UK asylum laws to deter future asylum seekers crossing the English channel.

The comments come after a spike in attempted crossings, including 235 people arriving on 6 August 2020 – a record for a single day. The increase is mainly due to the favourable weather and sea conditions over the past few weeks.

In total, more than 4,000 people have successfully crossed the English Channel this way so far.

The prime minister has said it was “very, very difficult” to legally return people who arrive in the UK from France using small boats.

Current asylum law

Currently, the UK is adhering to EU asylum law and will do so for the duration of the 11-month post-Brexit transition period since its departure from the bloc in January.

Under the so-called Dublin regulation, an individual’s asylum claim can be transferred to the first safe member state they entered. By extension, it is highly unlikely the UK will ever be obligated to process asylum claims as, being an island nation, almost all migrants will have had to pass through another EU country to arrive in the UK.

However, a spokesperson for the PM said that the Dublin rules, which put a time limit on transfers were “inflexible and rigid”.

Before adding that the rules were:

“abused by both migrants and their lawyers to frustrate the returns of those who have no right to be here”.

Writing for the International Observatory of Human Rights in May 2020, Dr. Arianne Shahvisi said:

“[These people] are compelled by the UK’s inhumane asylum policy to hang under lorries, stack themselves in poorly ventilated cargo boxes, and pile into flimsy boats…The problem is that asylum applications must be made on British soil. Incongruously, in order to be permitted to even request to live in a place of safety, stability, and opportunity, you have to already be there.”

This leaves asylum seekers with two options. The first is to fly, but this is made practically impossible as the government advises against issuing visas to applicants if the, “the political, economic and security situation in the applicant’s country of residence…leads to doubts about their intention to leave the UK at the end of their visit”.

Effectively, if the UK expects an attempt to claim asylum, travel to the country is not authorised in the first place.

Dr. Shahvisi explains that:

“That leaves just one option: would-be asylum seekers must enlist smugglers, at considerable cost and risk, to help them to move across borders without detection. Their attempts to reach the UK necessarily require them to break laws, and hand over their life savings to criminal networks who can offer no certainty about whether they’ll arrive alive. The odds are never good.”

The current system is actively leading to asylum seekers risking their lives to come here. Doubling down on making asylum claims harder, as the government seems intent on doing, is not going to solve this issue.

Regardless, a group of 23 Conservative MPs and two peers wrote to Priti Patel, the UK home secretary, to demand “stronger enforcement” to combat the “surge in illegal immigration”.

Notably however, Natalie Elphicke, the Conservative MP for Dover who has witnessed her constituency take a significant proportion of the arrivals, has distanced herself from the letter and the rhetoric of her colleagues, which used language such as “invading migrants”.

Boris Johnson was also accused on Monday of scapegoating those crossing the Channel to seek asylum in the UK and using “inaccurate and inflammatory” language to describe their plight.

The changes?

Downing Street has said the Border Force was looking at a “range of options,” including new measures, to stop boats entering British waters.

Late last week, the UK Home Secretary, announced plans to use the navy to stem the growing numbers of asylum seekers attempting to make the crossing. She upheld that legal advice confirmed the move would be permitted under international maritime law.

However, this was regarded as a “completely potty” idea by a source within the Ministry of Defence.

Many have argued that the use of the navy to deter migrants was akin to pushbacks, illegal under international asylum laws. Bella Sankey, a qualified barrister and director of Detention Action said:

“The home secretary’s hysterical plea to the navy is as irresponsible as it is ironic. Pushbacks at sea are unlawful and would threaten human lives.

Before adding:

“No civilised country can even consider this, let alone a country with a tradition of offering sanctuary to those fleeing persecution. Our armed forces defeated nazism and paid in blood for the refugee convention signed after the horrors of the second world war – as if our military could be deployed to frustrate its central objective.”

On Sunday, Patel appointed Dan O’Mahoney, a former Border Force official, to the newly created role of “clandestine Channel threat commander”. The former Royal Marine has been tasked with pushing the French for stronger enforcement measures and to adopt interceptions and the return of boats at sea.

The Conservatives are pursuing hardline policies that might appeal to a large number of their base. But, as BBC political correspondent Helen Catt said:

“The UK and France have worked closely on this for close to two decades….But they can’t change geography. Calais remains a magnet because it is only 20 miles from the UK – on a clear day in Dover, you can see the headlights of French traffic on the other side of the sea No amount of planes, walls or Navy deployments can alter that.”

Lord Ricketts, a former ambassador to France, said:

“It does show the hollowness of the rhetoric about ‘taking back control’ – this has to be done cooperatively with France. We have had a long track record of good cooperation with the French.”

The legality?

The UK has announced plans to remove 20 asylum seekers on a charter flight on Wednesday, the first since the coronavirus lockdown to specifically target asylum seekers who have crossed the Channel from mainland Europe by small boats or other clandestine means.

The Guardian has learned that “at least 17 asylum seekers facing removal have been preparing legal action to prevent them being put on the flight, although it is understood the Home Office has already deferred the removal directions for at least five people initially scheduled to be on it.”

Toufique Hossain of Duncan Lewis solicitors, who is representing many of the asylum seekers facing removal, has said:

“All the clients we represent have strong claims for international protection. They are, by definition, refugees. They also have very strong reasons as to why their claims ought to be processed in the UK….Rather than vilifying refugees who enter the UK, plotting potentially unlawful ways in which to push them back, [the home secretary] Priti Patel ought to spend time developing safe and durable routes for refugees to claim asylum.”

Immigration barrister Colin Yeo, author of ‘Welcome To Britain: Fixing Our Broken Immigration System’ and founder of the FreeMovement immigration blog, has also questioned the legality of using the Royal Navy to stop border crossings without reaching an agreement with the French, saying:

“The Royal Navy cannot simply enter French waters without an agreement to return migrants crossing the Channel…The French authorities would need to agree to accept any returns and because of the variety of hard Brexit sought by the UK government… It will become harder to return migrants to France in 2021, not easier.”

What needs to be remembered is that, behind the numbers and the rhetoric these are real people, who are so desperate as to risk their lives in the UK. The Government should be making it easier for the most vulnerable people to better their lives here, not harder, and should take pride in doing so.

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