lllegal Migration Bill: A New Law to Deter Asylum Seekers from Crossing the English Channel in Small Boats

The UK Government’s latest attempt to rectify a flawed system for identifying and processing potential asylum seekers was disclosed by Home Secretary Suella Braverman on 7 March 2023. In a statement to the House of Commons on the day, designed to address the concerns of a wider “patriotic and law-abiding” British public, she introduced new legislation, over and above the asylum provisions contained within the Nationality and Borders Act 2022, to curb small boat crossings of the English Channel by asylum seekers. 

The need for a new legislative framework is backed up by exponentially rising numbers of “illegal arrivals” from multiple safe countries to Britain’s shores in small boats, mostly from northern France. According to Home Office figures, 45, 755 people crossed the Channel unlawfully on small boats in 2022. The corresponding numbers were 299 in 2018; 1,843 in 2019; 8, 446 in 2020; and 28, 526 in 2021. Much of this increase in cross-Channel movement of people has been attributed to disruptions to the usual routes of travel-by air, rail, and ship- during the COVID pandemic. The backlog of unsettled asylum claims is greater than 160,000, while the asylum system costs the British taxpayer £3 billion a year. 

Lest the Bill appear unduly harsh, the Home Secretary identified a compassionate side to the UK government’s approach, whereby “nearly half a million people” have received sanctuary in the UK since 2015 through family resettlement and “safe and legal routes” to asylum, including 150,000 people from Hong Kong, 160,000 Ukrainians, and 25,000 Afghans. She even referred to her own parents as beneficiaries of the “security and opportunity” available to them as migrants to the UK. 

The new Bill penalises illegal arrivals on small boats by giving the Home Secretary a legal duty to deny them entry, settlement, and citizenship, and also permanently ban them from returning to these shores. These people will be detained, without bail or judicial review, for up to 28 days, prior to removal, back to their country of origin or to a safe third country. Exceptions have been made for unaccompanied children (aged 18 or under), those at “real risk” of serious harm in the proposed country of removal, and those medically unfit to fly. Any legal challenges will only be considered remotely, after successful removal from the UK. A more hardline version of this Bill has featured in a document entitled ‘How to legislate about small boats”, which was issued by the think tank Policy Exchange on 11 February 2023 and endorsed in a foreword by former Australian Foreign Minister Alexander Downer. Their proposals included unconditional repatriation of all small boat arrivals to include unaccompanied children and their immediate return to France or removal to a British Overseas Territory, “possibly Ascension Island.” 

Modern slavery referrals will be disqualified on public order grounds under the terms of the Council of Europe Convention on Action against Trafficking in Human Beings (ECAT). This may well conflict with the UK’s government’s legal duties towards victims and potential victims of people trafficking under international law and existing domestic human rights law. New safe and legal routes for asylum seekers will be developed, subject to a cap on annual numbers of refugees allowed to resettle in the UK, partly determined by local authorities’ capacity to house asylum seekers. 

Whether one either welcomes or seeks to discourage asylum seekers, there can be no denying that small boat arrivals should be prevented on grounds of safety alone- not to mention the extortionate fees charged by unscrupulous traffickers. Apart from opportunistic crossings by desperate individuals on their own initiative, many flimsy and overcrowded small boats, lacking safety equipment, are being deployed by criminal gangs involved in people trafficking, with little consideration for the welfare of the people being transported. An amber alert issued by National Crime Agency (NCA) in April 2021 indeed stressed the importance of “Preventing the supply of ‘Small Boats’ to criminals” in reducing their use in illegal sea crossings. The government’s approach to dealing with small boat arrivals until now includes improved Franco-British cooperation and joint working, establishment of a Small Boats Operational Command in December 2022, and measures to specifically discourage Albanian immigration, which reportedly accounts for a third of small boat arrivals. Meanwhile, Operation Invigor has brought the NCA, Home Office Intelligence, and UK police forces together to tackle organised criminal gangs engaged in people trafficking. At the same time, controversial attempts to reduce the costs of housing existing asylum seekers in hotels, at £6.2 million a day, by moving them to “cheaper alternative accommodation” on disused holiday parks and surplus military sites, have often placed them in close proximity to the very people who most seek their removal from the UK. 

The fundamental problem with the new proposed legislation, as with the government’s earlier much-touted Rwanda policy, is one of implementation. Likely legal challenges from multiple sources and conflicts with international law, including the 1951 UN Refugee Convention and the European Convention on Human Rights, may delay introduction of the new law. Furthermore, the logistic problems of detaining failed asylum seekers in outsourced safe third countries seem rather daunting. Unlike Australia, the UK has no access to suitably large offshore detention centres in South Pacific islands to house these unfortunate people as they await their uncertain futures. The government has put its cards on the table, but it remains far from clear that it has dealt a winning hand. 

Ashis Banerjee 

PS; The 36th Anglo-French bilateral summit, the first such summit since 2018, was hosted by President Emmanuel Macron, in amicable circumstances, at the Palais de l’Élysée in Paris on 10 March 2023. It was announced that the UK would contribute a total of £478 million to the French government over the next three years, in three annual instalments, to strengthen security along the northern French coastline. This is to be achieved by an additional French police officers to patrol the nation’s beaches, supported by enhanced coastal surveillance technology (drones, aircraft, etc.). A joint command centre will help coordinate joint working of border personnel, and a new detention centre, of unspecified capacity, is to be built in he Dunkirk area. An agreement whereby intending asylum seekers can be returned to France did not fall within the remit of the talks and will have to await future dialogue between the EU and the UK.