The UK government appears to be responding to an increase in asylum seekers crossing the English Channel as if threatened by invasion. Global Insight evaluates the government’s approach and its compatibility with the rule of law.

In August, a group of 25 MPs and peers sent a letter to the UK Home Office, encouraging the use of Royal Navy warships to combat an ‘invasion’ of asylum seekers. The group wrote that ‘it is strikingly clear that, rather than a “hostile environment”, invading migrants have been welcomed’.

What the group terms an ‘invasion’ is an increase in people crossing the English Channel to seek asylum in the UK.

Warships in the Channel

Although many of these asylum seekers are in fact fleeing war, not launching one, and arrive in inflatable dinghies as opposed to battleships, Home Secretary Priti Patel has appointed an ex-Royal Marine as her Clandestine Channel Threat Commander.

The Clandestine Commander is to work with the ‘French authorities and operational partners to make this incredibly dangerous route unviable’, a Home Office spokesperson tells Global Insight.

The Clandestine Commander’s mandate seems to be to find solutions that prevent asylum seekers taking to water, or else pushing them back to France however possible. This is despite recent concerns about the standard of living for asylum seekers waiting for their claim to be processed there.

In August, military intervention was indeed requested by the Home Office from the Ministry of Defence (MOD), although one official called the idea ‘completely potty’.

In a joint press release, the UN Refugee Agency (UNHCR) and International Organization for Migration condemned the idea of ‘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, not just borders.

The UK’s suggestions have since been dialled back, with naval intervention currently comprising of only increased ‘aerial surveillance’ by the MOD. The Home Office would not confirm if passive blockades, another idea floated by the Home Secretary, are still being considered.

Laura Padoan, UNHCR’s UK External Relations Officer, 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’.

The UK government, however, seems to have had difficulty finding a solution that does not bring it into conflict with the rule of law. In fact, the government has taken issue with the legal framework itself.

Legal – and lawyer – barriers

On Twitter in early September, Home Secretary Patel complained of ‘legislative, legal and operational barriers’ to preventing asylum seekers crossing the Channel, and said the Home Office will be reviewing laws that inhibit ‘stronger action’. With the UK’s Brexit withdrawal period ending on 31 December, the UK will be looking to renegotiate agreements with countries like France to ‘take back control’ of borders.

Prime Minister Boris Johnson commented 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 EU 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 concept of an ‘illegal immigrant’ using a panoply of laws to stay in the UK legally seems like an oxymoron. And many asylum seekers have the right to be in the UK. Although the government has worked quickly to deport asylum seekers that make it to UK shores, their efforts have been blocked by the members of the legal profession and judiciary who are committed to upholding the rule of law.

Notably, all 23 of the asylum seekers facing court decisions on deportation on 27 August were found to have the legal right to stay in the UK. Several other deportation flights were halted at the last minute following other court rulings.

In late 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 two days after its publication, with Home Office Permanent Secretary Matthew Rycroft declaring that it ‘should not have been used on an official government channel’.

Yet the government stands by its focus on returning ‘illegal’ Channel crossers. It insists that there are plenty of legal routes for asylum seekers to take. Meanwhile, the group of 25 MPs and peers who wrote to the Home Office in August, claim asylum seekers crossing the Channel undermine those abiding by the law.

Human rights advocates, however, argue that increasing safe and legal routes is the only way to stop people crossing the Channel.

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 limited legal options available to so few people in need of protection, people may be forced to undertake dangerous journeys.

Giorgia Doná, Professor of Forced Migration and Refugee Studies at the University of East London and Co-Director of the Centre for Research on Migration, Refugees and Belonging, believes that the hostile environment and securitisation approaches adopted by the UK government leave those with a right to seek asylum without the ability to do so legally.

‘The language of “obstacles” cited by the government can be reversed to refer to its resistance to complying with international human rights obligations and attempts to limit the already small number of individuals who seek asylum,’ Doná adds.

In search of a shield

Despite its withdrawal from the EU, the UK’s focus on border control over the right to asylum is in line with a tide of anti-asylum sentiment across Europe.

For example, despite international laws of the sea conferring a duty on any ship to attempt to rescue persons in danger at sea, some EU Member States have dialled back search and rescue operations. In August, at least 45 migrants died off the Libyan coast in the largest confirmed shipwreck in the area this year.

A European Commission spokesperson could not comment, but the EU’s New Pact on Migration and Asylum, presented on 23 September, deems criminalisation of NGO search and rescue unlawful under EU law.

At the extreme end of the spectrum, 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 – a direct violation of the right to asylum.

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

Greece denies these allegations, and the Greek Minister for Immigration 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’s frustration with the number of asylum seekers it currently houses is no secret. Greece has frequently called for extra support from other EU Member States given the EU Dublin Regulation requires claims to be processed in the first safe country an asylum seeker reaches – typically Greece or Italy.

Again declining to comment directly, the European Commission spokesperson pointed Global Insight to the ‘solidarity mechanism’ proposed in the new Pact, which aims to ensure overburdened Member States are better supported. Ursula von der Leyen, President of the Commission, says the EU will take a ‘human and humane approach’.

Yet, in March, von der Leyen thanked Greece for ‘being our European aspida [shield] in these times’.

But what is Greece ‘shielding’ Europe from? Who is ‘invading’ Britain?

The language used, and often the approach taken, by these governments suggests we’re at war. No matter that asylum seekers are forced to make long and dangerous journeys – that crossing the 22 miles of the English Channel and ‘paddling in’, as the group of MPs put it in their letter to the Home Office, is more likely to leave them grasping at the shore in exhaustion or, in the worst cases, on the ocean floor.

As Doná concludes, ‘unless there are more legal routes, individuals will continue to risk their lives to find safety and ensure their survival. Of course, unless the root causes of conflicts are being addressed and global wealth inequalities tackled, people will continue to move and closing borders will never be a long-term solution in our globalised world’.

Jennifer Venis is Multimedia Journalist at the IBA and can be contacted at jennifer.venis@int-bar.org

Pic: The Louise Michel, a migrant search and rescue ship financed by street artist, Banksy, sails in the Mediterranean Sea, August 2020. REUTERS/MV Louise Michel/Handout