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Migration: UK struggles against legal barriers to block asylum seekers crossing Channel

Jennifer Venis, IBA Multimedia JournalistMonday 7 September 2020

The British Government has been accused of undermining the rule of law in its approach and rhetoric towards the increasing number of asylum seekers crossing the English Channel to reach the United Kingdom.

On 26 August, the Home Office released a video on social media in which it claimed it was working to ‘remove migrants with no right to remain in the UK. But currently return regulations are rigid and open to abuse […] allowing activist lawyers to delay and disrupt returns’.

Simon Davis, President of the Law Society of England and Wales, condemned the Home Office’s video, stating, ‘Solicitors advise their clients on their rights under the laws created by parliament. To describe lawyers who are upholding the law as “activist lawyers” is misleading and dangerous’.

The use of the clip was discontinued on 28 August, with Home Office Permanent Secretary Matthew Rycroft declaring that it ‘should not have been used on an official government channel’, but the term ‘activist lawyers’ was again used by Home Secretary Priti Patel when tweeting the replacement video.

All over the world governments wary of immigrants have therefore sought to make it difficult, deadly, near impossible to get to a specific country to make [an asylum] claim

Barbara Wegelin
Refugee Officer, IBA Immigration and Nationality Law Committee

The Home Office’s language in the clip echoes UK Prime Minister Boris Johnson’s comments that the UK should review the ‘panoply of laws that an illegal immigrant has at his or her disposal that allow them to stay here’ and that the European Union Dublin regulation – which determines the EU Member State responsible for examining an asylum application – is ‘abused by both migrants and their lawyers to frustrate the returns of those who have no right to be here’.

The comments from the government were made in light of a series of conflicts with the rule of law, as the UK government’s attempts to block the Channel route between the UK and France clash with international legal frameworks.

A Home Office spokesperson highlighted that Home Secretary Patel has appointed a Clandestine Channel Threat Commander to work with the French authorities on solutions that are focused on preventing any asylum seekers taking to water, or else getting them back to France however possible. The spokesperson tells Global Insight that ‘The Government is working with the French authorities and operational partners to make this incredibly dangerous route unviable.’

But Home Secretary Patel has suggested on Twitter that the Home Office faces ‘legislative, legal and operational barriers’ to do so, and is reviewing laws that inhibit ‘stronger action’.

Laura Padoan, the United Nations Refugee Agency’s (UNHCR) UK spokesperson, tells Global Insight that ‘While we recognise the legitimate right of states to control their borders, states also must guarantee and safeguard the rights of people seeking asylum because there are international laws that bind them to the obligation of providing protection’.

In early August, the Home Office had floated suggestions of a ‘passive blockade’ and sending military vessels to intercept the asylum seekers crossing in rubber dinghies – a system modelled by Australia – but faced backlash from international human rights organisations.

In a joint press release, the UNHCR and the International Organization for Migration (IOM) spoke out against ‘interception at sea’, stating that ‘the deployment of large naval vessels to deter such crossings and block small, flimsy dinghies may result in harmful and fatal incidents’. The priority, they reminded the UK, is to save lives.

Barbara Wegelin, Refugee Officer of the IBA Immigration and Nationality Law Committee, notes that ‘to lodge a claim for asylum you have to be present on the territory of a country. All over the world governments wary of immigrants have therefore sought to make it difficult, deadly, near impossible to get to a specific country to make that claim’.

The UK’s suggestions have since been dialled back, with naval intervention currently comprising of only increased ‘aerial surveillance’ by the Ministry of Defence. The Home Office would not confirm if passive blockades are still being considered, and said that the Clandestine Channel Threat Commander and the Home Office continue to work with French authorities to prevent crossings.

Further, a review of laws will be forthcoming, thanks to the end of the Brexit withdrawal period in December. The UK will be looking to renegotiate agreements with countries like France to ‘take back control of the borders’.

Padoan notes that ‘Currently, the UK’s refugee family reunion rules are quite restrictive, so only parents with children under the age of 18 can apply for those children to join them. Refugee children in the UK aren’t entitled to sponsor their parents to join them.’

She says that with those limited legal options available to so few people who are in need of protection, people may be forced to undertake dangerous journeys.

Wegelin adds, ‘The solution is simple: make it safe and legal to access asylum, for example by allowing applications to be lodged extra-territorially’ and ‘resettle refugees from desperate places, including the horror camps in Greece’.

She points to the ongoing discussion around introducing refugee visas to enable such measures, to ‘make sure that people in need of protection can get their claim assessed without dying in the process.’

Despite its withdrawal from the EU, the UK’s approach is in line with a tide of anti-asylum sentiment across Europe. For example, multiple investigations, including by The New York Times and Human Rights Watch, have found evidence that Greek authorities have physically pushed at least 1,000 asylum seekers back to Turkish waters, even after arrival on Greek soil.

Greek authorities are accused of disabling boat engines and using equipment meant for life-saving search and rescue operations to facilitate this pushback, with asylum seekers recounting first-hand being forced onto the sea in leaky life boats and left adrift in Turkish waters.

The UNHCR has said it is ‘deeply concerned’ about these reports and has called on Greece to investigate twice this summer.

Greece denies these allegations, and its Minister on Migration and Asylum Notis Mitarakis issued a statement declaring that ‘Greece implements a tough but fair migration policy and fully respects its obligations under international law.’

Greece has repeatedly called for more assistance from EU Member States as its facilities for asylum seekers have become vastly overcrowded and unsanitary in light of the EU’s 2015 Dublin Regulation, which determines that all asylum claimants that reach Greece must have their claim processed there.

In March, Ursula von der Leyen, President of the European Commission, thanked Greece for ‘being our European aspida [shield] in these times’.

Image: Christine Bird / Shutterstock.com