The small boats crisis is bad and getting worse. Tens of thousands have entered the UK unlawfully this year. Most will claim asylum. Many will be genuine asylum-seekers and some will truly be at risk of persecution in their home country. Others will be economic migrants making fraudulent claims to asylum. But all will have embarked in a small boat from France, or some other coastal European state, which is a safe country where they are not in danger. They should not be permitted to enter the UK in this way.
The problem is not the Refugee Convention 1951, which the UK rightly honours. The Convention does not require the UK to admit asylum-seekers to its territory. If the UK shared a land border with France, it would be perfectly lawful for officials to refuse entry to anyone attempting to enter the UK without entry clearance. But it is impractical for the UK to turn back the boats in the Channel without putting lives at risk. Returning the boats to a French port or beach would be practical, but not without French agreement.
Some who cross the Channel will eventually be granted asylum in the UK. But even if asylum claims fail, few are likely ever to be removed, because the legal and practical obstacles to removal are significant. The longer they spend in the UK, the greater the obstacles, for they may form relationships and attachments that make removal unlawful. Others will simply abscond, such that they cannot be removed in any case. Crossing the Channel has thus become a viable route, for those who can afford it, to enter and remain in Britain, with a reasonable expectation that they will never be removed.
The solution to the crisis is to make it very clear that crossing the Channel in a small boat is not a viable route to enter or remain in the UK. The Government seems to be putting its hopes in French law enforcement, which will intercept more boats before they embark and will place pressure on the people smugglers. This is important work – without French efforts, many more boats would be crossing the Channel – but it is hard to see it solving the problem, because the risks of interception (and punishment) are low and the rewards are high, which means that the people smugglers’ business model remains intact.
Far and away the best solution would be an agreement with France for immediate return of anyone crossing the Channel in a small boat. France is a safe country. Returning economic migrants and asylum-seekers to France would make the journey futile and would thus immediately destroy the people smugglers’ business model. Such returns would be entirely compatible with the 1951 Convention.
One can understand why the French government does not want to conclude such an agreement, which would be politically challenging. But morally the case for an agreement is overwhelming. It would save lives in the Channel and would break up the people smuggler rings, discouraging others from travelling onwards to the French coast.
There is a good legal case for an agreement too. France and the UK are jointly committed in international law to stamping out people smuggling and thus should endeavour to reach an agreement that would put a stop to the Channel crossings. It is notable that France has reached agreements with many other countries, which allow removal of people from France, but not with the UK because this would involve returns to France.
If such an agreement with France cannot be reached, the second-best course of action, as Policy Exchange argued in February, is for the UK to put in place a scheme that provides that no one unlawfully entering the UK on a small boat from a coastal European state, including genuine refugees, would ever be able to settle in the UK – unless they were being persecuted in the European state from which they had fled directly to the UK. Parliament would need to legislate to make this proposition very clear.
Parliament would need also to legislate to impose a legal duty on the government to remove from the UK those crossing the Channel, making provision for British officials to consider their asylum claims outside the UK, either in a British overseas territory or in a third country. Some of these people, especially those who are in fact economic migrants, might accept (subsidised) return to their home country. Others, if genuine refugees, would need to be resettled to a safe third country, which would require the Government to reach agreements with such countries and to help fund resettlement.
The Government should also work with the UNHCR, committing to accept many more of the world’s most vulnerable refugees directly from camps in exchange for help in resettling those who had attempted to enter the UK unlawfully. This would reform the present situation in which priority for settlement is effectively outsourced to people smugglers.
The Government’s Rwanda plan is a variation on this idea, with Rwandan officials processing claims rather than British officials, but of course the plan has not been put into action, partly because the plan is not mandated by legislation and so has been vulnerable to litigation and has indeed been frustrated by the European Court of Human Rights.
Legislation should require the Home Secretary immediately (within days of arrival) to remove from the UK anyone unlawfully entering the UK in a small boat from a safe country. This legislation would need to specify that the Human Rights Act 1998 did not apply, which would not be a concession that the legislation breached the European Convention on Human Rights, but would prevent speedy removal from being blocked in court.
In this context, the proposed British Bill of Rights is beside the point. If the Bill is revived by the Government, which remains to be seen, it will aim to reform human rights law in relation to immigration and asylum and to specify that the Strasbourg Court’s “interim measures” have no effect in domestic law.
But such measures, which the Court deployed to block the Rwanda plan in June this year, have no effect in domestic law in any case. The problem is that the Government then – and now – chose not to press ahead. What is needed is legislation that would shift the default, making it mandatory for the Government to act and thus not leaving it with the option of stopping when Strasbourg objects.
The Government would have to defend the merits of the scheme before the Strasbourg Court in due course. It would have a reasonable case to make, provided that removals were to safe countries. However, it should also be willing to live with a judgment that finds the UK in breach of the European Convention on Human Rights, just as we lived for many years with a ban on prisoner voting that the Strasbourg Court had denounced.
Developing and implementing such a scheme is no small undertaking, which may be why it has not been attempted. But unless an agreement with France can be secured, there is good reason for the Government and Parliament to respond to the Channel crossings in this way.