In recent weeks, the number of migrants making the treacherous journey across the English Channel from France has triggered Home Secretary Priti Patel to seek legal advice from military advisors.
Over 4,000 individuals are said to have entered the UK from small boats across the Channel so far in 2020, an increase from last year’s numbers. The Home Secretary claims that sending in naval vessels would be permissible under international law according to legal advice. However, some human rights lawyers are concerned that the presence and use of the navy to tackle the number of migrant boats would be unlawful under international and EU guidelines.
INSIGHT FROM IMMIGRATION SPECIALISTS
In light of the Home Secretary’s comments, experts are concerned about the risk to the health and wellbeing of migrants. Bella Sankey, director of Detention Action, called the plans a “hysterical plea to the navy”, adding that, “pushbacks at sea are unlawful and would threaten human lives.” Whilst migration specialist, Dr Maurice Stierl, adds that the proposed measures would “delay rescues and endanger vulnerable migrants.”
As for the legality of the UK Navy entering French waters, immigration barrister, Colin Yeo, highlighted that without an agreement in place with French authorities, the UK’s Royal Navy “cannot simply enter French waters.” An insider source at the Ministry of Defence goes as far as to say that Navy action is “a completely potty idea.”
LEGAL BASIS OF THE UK APPROACH
The international framework governing refugee law is complex, regulated by domestic, EU and international norms. A common misconception about the legal regime relates to the requirement for asylum seekers to take refuge in the first safe country that they enter - this is not the case under international law. This position is reaffirmed by UK case law as well as Section 31 of the Immigration and Asylum Act 1999. However, under the Dublin III Regulation, an individual can be ‘transferred’ back to the first EU country they entered if they meet certain criteria.
In this case, asylum seekers arriving from France can legitimately claim asylum in the UK. On review of their asylum application, the UK then decides whether to accept or initiate a ‘transfer’ claim if the origin EU country can be verified. The criteria considered when reviewing an application under the Dublin Regulation include family unity, possession of residence documents or visas, irregular entry or stay, and visa-waived entry. For this reason, the intended ‘push back’ of boats in the Channel does not appear compliant with the UK’s legal obligations - individuals with a valid case must have the opportunity to have their situation examined before being deported.
SCAPEGOATING OF MIGRANTS
Despite an increase in the numbers of migrants arriving on British shores this year, when considering the number of refugees and asylum seekers taking refuge within the UK compared to other European nations, the recent media frenzy appears disproportionate. In 2019, there were roughly 36,000 asylum applications according to Home Office data in comparison to 165,615 applications in Germany, 151,070 in France and 117,800 in Spain within the same timeframe. Developing countries are hosting most of the world’s refugees.
The scapegoating of migrants has been a long running theme in British media and political discourse. The notion of refugees and asylum seekers flooding public services and claiming huge sums from the State are mostly unwarranted. In the UK, many migrants who have been granted limited leave or have a temporary visa have no recourse to public funds, meaning they are not eligible to access State benefits. These individuals are left to live off of £35.39-£37.75 per week.
The lack of safe, legal routes into the country acts as an incentive for dangerous crossings to take place, crossings that will continue to rise until safe alternatives become available. Resorting to Navy and RAF intervention will not increase the scope of the UK’s authority to manage incoming migrants nor change their legal status. Consequently, the purpose of this decision remains unclear.
Christie graduated with an LLM in International Law and Security from the University of Glasgow. She focused on areas such as nuclear weapons, cyber security, counter-terrorism, and the international courts system. Most recently, she interned at the International Bar Association undertaking legal research and policy work