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It is time for the UK to open a limited legal route for the asylum seekers waiting for small boats in Calais

". The UK Government has introduced an asylum law to ban asylum claims and exclude from citizenship anybody who enters the UK illegally. "

Headline points

Thousands of asylum seekers are crossing the Channel in small boats from northern France each year. The UK Government has introduced an asylum law to ban asylum claims and exclude from citizenship anybody who enters the UK illegally. Critics say it is illegal, unworkable, and unethical. It is true there are some legal routes to the UK for asylum seekers but they apply to few categories and small numbers, and are not a practical option for those are falling into the hands of the people smugglers around Calais.

This blog argues for a pilot scheme to fight the people smugglers with a legal route to the UK. The main feature would be a combined asylum/work visa. Visas would be granted to applicants with an 85% or more chance of being granted asylum. There would be a priority asylum visa for those unable to work.  Applications would be made online from a visa-application office in northern France, with advice and assistance from staff, and preliminary interviews taking place at that location. The Government would control numbers. It would be low risk for the taxpayer, and it would benefit the UK economy.

The UK Government’s plan to fight the people smugglers is probably contrary to international law

The UK has a problem with criminal gangs trafficking asylum seekers across the Channel in small boats. The UK Government has introduced legislation which aims to stem the flow and break the traffickers’ business model. Asylum seekers who reach the UK would be prohibited from seeking asylum, and detained with a view to return to their country of origin, or removal to a safe third country for processing and possible resettlement. It is true that safe routes exist for asylum seekers to claim asylum in the UK, but they apply to few categories, to small numbers, and do not represent a practical option for those are falling into the hands of people traffickers in northern France. The Government says it believes its plans are consistent with international law, but the Home Secretary has been unable to confirm that the Bill is consistent with the European Convention on Human Rights. The UN Refugee Agency says that it would amount to a ban on asylum and to a breach of the 1951 Refugee Convention. The Government promises that the Bill will allow discussion of new safe routes, and an annual cap on the number of people entering via those safe routes. The Bill authorises the Government to identify safe and legal routes and to cap the numbers of people who may enter the UK using those routes.

Offering a combined asylum/work visa would undermine the business plan of the people traffickers

This blog suggests a pilot scheme that would be consistent with international law, and would aim to undermine the traffickers’ business model by providing a lawful alternative route for asylum seekers and their families. This route would be open to those granted a combined asylum/work visa or a priority asylum visa. The great majority of the visas granted would be asylum/work visas. The proposed visa policy would not in theory contradict the Government’s present package of policies, because that package envisages discussion of new safe routes. Since the proposed policy would undermine the business plan of the people traffickers, it would reinforce the package of measures agreed by Prime Minister Rishi Sunak and President Emmanuel Macron on 10th March 2023 designed to prevent small boat crossings at source on the French coast.

Most of the asylum seekers who reach the UK are found to be genuine by the UK authorities

45,728 people are believed to have crossed the Channel to the UK in small boats in 2022, an increase of more than 17,000 on the 28,526 who arrived in 2021. To put these numbers in context, applications for asylum in the UK are at an historically high rate. There were 63,089 applications in the year ending June 2022, which is the highest number since 2003. Of the top ten nationalities applying for asylum, half have a grant rate above 80% – Iran 85%, Afghanistan 97%, Eritrea 97%, Syria 98% and Sudan 92%. Albanians have been less likely to be granted asylum than other nationalities with the current grant rate 53% compared to 76% for all nationalities.

As of 30 September 2022, there were around 117,000 asylum applications awaiting an initial decision in the UK, comprising around 143,000 people. On 13 December 2022, Prime Minister Rishi Sunak pledged to clear the backlog by the end of 2023. People who have claimed asylum in the UK can apply for permission to work if they have been waiting 12 months for a decision, and they are not considered responsible for the delay. If permission is granted, the person will be allowed to take up jobs on the shortage occupation list only. In the meantime, asylum seekers receive an allowance of £45 per week. In all four nations of the UK, refugees and asylum seekers with an active application or appeal are entitled to free NHS care. The bar on employment for 12 months is designed to reduce the “pull-factor” of the UK for those seeking asylum.

Asylum seekers with work visas would contribute to the UK economy

A distinction is often drawn between refugees and economic migrants. That distinction is a valid one, but it should not mask the fact that individuals may be both fleeing persecution and seeking economic betterment, and the latter motive does not invalidate the former. If UK policy recognised the economic ambitions of asylum seekers and allowed some to enter the UK both to work and to pursue a claim for asylum, that would save those concerned from the clutches of criminal gangs, and undermine the traffickers business plan. At the same time the asylum seekers/workers would be contributing to the UK economy, and saving the taxpayer the cost of support payments during a period of enforced economic inactivity.

Brexit has left many vacancies in the UK’s unskilled labour market

A report by think-tank UK in a Changing Europe suggests that the present UK system for migrant workers is effective for skilled workers but leaves something of a gap for unskilled workers, supplied by migration from the EU prior to Brexit. The report estimates this shortfall as being more than 400,000, affecting in particular the sectors of hospitality and transport. The UK could plug some of this gap for unskilled workers by offering combined entry for assessment and work visas to asylum seekers planning small-boat crossings from northern France.

Outline of a pilot scheme for combined asylum/work visas

A pilot scheme could be designed along the following lines. Applications for combined visas would be made online from a visa-application office in northern France, with advice and assistance from staff, and preliminary interviews taking place at that location. The criteria for grant of a combined visa would include a profile that suggested a high likelihood (say 85% and above) that the person concerned would be successful in their claim for asylum. The visa would be subject to review after determination of the holder’s asylum claim.

The work visa element of the combined visa would be loosely based on the current worker (“skilled worker”)  visa, with the key criterion being an offer of employment (“sponsorship”) from an employer licensed to offer sponsorship to an asylum seeker. The UK Government and local authorities would promote the new work visa scheme to employers, and employers could apply to be placed on a new section of the present Register of Worker and Temporary Worker licensed sponsors,either in addition to an existing registration or solely as a sponsor of asylum seekers. A number of local authorities throughout the UK are already registered sponsors in their capacity as employers and many local authorities might welcome registration on the new section of the register. Overall there are labour shortages in the UK and the proposed scheme would be unlikely to fail for lack of potential sponsors.

An employer’s registration would indicate whether or not the employer would offer any financial assistance or advance in wages to  the worker to cover initial settlement costs. This would not be essential in all cases because some applicants would have funding to cover initial settlement costs. Applicants for combined visas would indicate whether they had funding to cover initial settlement costs. There would be no charges by the UK Government in respect of combined visas (there are normally charges for work visas). Like conventional work visas, the combined visa would cover a partner and children.

A priority asylum visa for those unable to work

A combined asylum/work visa would cater for the needs of the great majority of asylum seekers who consider crossing the Channel in small boats, and the great majority of visas would be granted to those in this category. For those unable to make a credible application for employment, a priority asylum visa would be available, with advice and assistance and preliminary interview at the proposed visa-application office in northern France.

A proposal that could be supported across party lines

The above proposal offers an outline only. It is a proposal for a pilot scheme, which could be time-limited and wound up or down according to circumstances. Perhaps it would prove itself and provide an enduring element of UK asylum policy. The UK Government would control the number of visas issued. It could make a contribution to breaking the business model of the people traffickers. It would be low risk for the UK and for the taxpayer, and it would be likely to benefit the economy. It could be supported by MPs in the UK’s governing party (Conservative) without conflict with the declared aims of Government policy, and by opposition parties and non-aligned members of the Upper House (House of Lords) without them endorsing the Government’s policy. It is a contribution to the conversation about the future of the UK’s asylum policy.

Derrick Wyatt, KC

Emeritus Professor of Law at the University of Oxford and a former barrister. He argued cases before the EU Courts and advised businesses and governments. He is a member of the International Academic Council of Fide Fundación.

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