It is unfair to take harsh measures against “illegal migrants” when there is no legal route for refugees to cross the Channel – and it is time to stop blaming the refugees

“The people traffickers are the real villains, legally and morally, in the small-boats drama. The UK Government should not muddy the moral waters by discrediting the refugees.”

Summary

The UK Government aims to deter refugees arriving in the UK in small boats by refusing to consider their claims and deporting them to Rwanda to seek asylum there, and a draft law to achieve this is progressing through the UK Parliament. The UN Refugee Agency says the law will be in breach of international law. Government ministers criticise the refugees for failing to claim asylum in France or somewhere else along the way, and for entering the UK illegally. This blog argues that the Government should stop blaming refugees for the situation, and pilot a legal route for refugees to seek asylum in the UK. There could be a combined work/asylum visa, targeting those refugees with a high chance of a successful asylum claim. And there could be a priority asylum visa for refugees unable to work.

A recap on the controversial draft law, which is officially titled the Illegal Migration Bill.

The UK has a problem with criminal gangs trafficking asylum seekers across the Channel in small boats. The Government has introduced this Bill 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. So far the only “safe country” in the offing is Rwanda. The Government says it believes its plans are consistent with international law, but has refused to certify to the UK Parliament 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.

It remains to be seen whether the legislation, when passed, will withstand any legal challenges made against it in the UK courts or the European Court of Human Rights.

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. But the safe and legal routes will come later – after the new rules reduce the flow of asylum seekers across the Channel.

The Government makes the populist claim that its policy represents the “will of the people”.

One reason for thinking this is a populist measure is that the UK Government insists that the Bill is the “will of the people”, and that opposing it is obstructing the will of the people. This is what populist parties do, they brand themselves as having a unique insight into what the people of a country want, they brand their policies as representing the will of the people, and they accuse those who oppose those policies as opposing the will of the people.

But the public’s view is unsettled and they would support other options too

The Government’s claim to represent the will of the people is unconvincing. Opinion poll research finds that if refugees are described as illegal migrants then support for the government’s policy exceeds 50% while if they are described as refugees support falls below 50%. And if those polled are asked to express a preference for the government’s policy over the alternative policy of speedy processing of asylum claims, support for the government’s policy dips to below 40% while 40% express a preference for the speedy processing option.

The Government’s policy portrays the refugees who cross the Channel in small boats in a bad light

The UK Government’s constant emphasis on the illegal entry of asylum seekers who cross the Channel in small boats, while refusing to offer any lawful route by which asylum seekers who have made their way to northern France can seek asylum in the UK, seems designed to keep these refugees firmly in the category of illegal migrants and present them in a bad light. Although the Government claims that its policies are designed to disrupt the business plan of the people traffickers, the Government seems to see the asylum seekers themselves as the real villains of the piece.

This may be populism-lite compared with the likes of Hungary’s Orban or France’s Le Pen, but populism it is

Populists like to blame foreigners, racial and religious minorities, and LGBTs for the problems in society, and to do so, they present them in a bad light. The UK Government is doing this to the refugees who cross the Channel in small boats to claim asylum in the UK.

The Govt accuses cross-Channel asylum seekers of being economic migrants and not asylum seekers

In the first place, they accuse these refugees of being economic migrants rather than asylum seekers. The Government does this indirectly, as well as directly, by pointing out that most of the refugees crossing the Channel to the UK are single men of working age. The inference is intended that most of those crossing the Channel are not genuine asylum seekers at all. Yet the government’s figures on the success rates of those claiming asylum in the UK points in the opposite direction.

Government statistics show that more than three-quarters of asylum seekers are genuine refugees

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.

A distinction is often drawn between refugees and economic migrants. That distinction is a valid one, but only up to a point. 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. The UK Government seems to recognise this because it promoted a pilot scheme a few years ago offering skilled work visas for asylum seekers.

Asylum seekers are criticised for crossing the Channel on the ground that they could have claimed asylum somewhere else

Asylum seekers in northern France who head for the UK could have claimed asylum in France. Just as asylum seekers who make it to France and claim asylum there could have claimed asylum in a country along the way. But most of the asylum seekers who reach France claim asylum there, and only a minority try to make it to the UK.

There are various reasons why a refugee might avoid claiming asylum in one country and prefer to claim in another, such as language, the presence of family or friends, or the perception of the refugee that they might build a better life in one country rather than another. The British Red Cross considers that 50% of the asylum seekers who cross the Channel do so because members of their family have already made it to the UK.

The UK approves a higher proportion of asylum applications than France, which could be a pull-factor.  Nevertheless, France attracted 130,000 asylum applications last year (2022), while the UK attracted 75,000  – though that was the highest number for the UK in 20 years.

Criticising asylum seekers because they could have sought asylum elsewhere is more likely to make Brits antagonistic to asylum seekers than to bring the UK closer to a solution to the overall problem. This may be the intention of some Government Ministers. Immigration Minister Robert Jenrick referred to “asylum shoppers” who should seek refuge in the first safe country under the Refugee Convention. This was corrected by the Prime Minister’s Office later – the Refugee Convention does not oblige a refugee to claim asylum in the first safe country they reach. Nevertheless, asylum seekers do not have a legal right either to claim asylum in any country in the world they choose.

People traffickers work hard to urge asylum seekers to cross the Channel because they want to take their money off them

People traffickers have a huge vested interest in persuading refugees in northern France that they should buy places on small boats to cross the Channel. The traffickers no doubt minimise the risks of crossing the Channel, and exaggerate and lie about the merits of the UK as a final destination. The traffickers are the real villains, legally and morally, in the small-boats drama. The UK Government should not muddy the moral waters by discrediting the refugees.

Describing asylum seekers as illegal migrants might be technically correct but it paints refugees as criminals

Describing the UK Governments legislation on asylum policy as the Illegal Migration Bill and repeatedly describing refugees as illegal entrants suggests criminality on their part and needlessly discredits people who are in the great majority of cases genuine refugees.

Describing cross-Channel refugees as illegal migrants is unfair when there is no legal route for them to claim asylum

The UK cannot be a refuge for all those fleeing persecution in the world. But it unfair to describe cross-Channel refugees as illegal migrants when in most cases they are genuine refugees, and when there is no legal route open to them to claim asylum in the UK.

So what does this writer suggest?

Suggestion number one – open a pilot scheme for refugees in northern France to side-step the people traffickers and apply for asylum in the UK

The main feature of a pilot scheme would be a combined asylum/work visa. The majority of visas granted would be in this category. 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. Opening such a scheme would be a direct attack on the business plan of the people traffickers. The Government would control numbers. It would be low risk for the taxpayer, and it would benefit the UK economy. For more details of the proposed scheme see this writer’s earlier blog here

Suggestion number two – the UK Government should change the way it talks about refugees

None of the UK’s political parties call for an open door to refugees. But there is no justification for the UK Government to go out of its way to discredit those refugees who feel driven to risk their lives crossing the English Channel in order to settle in the UK. The most likely effect of discrediting refugees is to make it difficult for those who do settle in the UK to make a success of their lives in the UK. Refugees have made a great contribution to British society, as have other migrants. The approach of Government should be to flag that up, while regretting that limits have to be placed on the numbers of migrants that can be accommodated in the UK.

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 an adviser to the Spanish think-tank Fide Fundación.