Illegal Channel Crisis Part Of Larger European Debacle


Asylum, Current Affairs, European Union, Human Rights, Legal Matters, Refugees

Illegal Channel crossings are spiralling upwards. More people crossed in the past month than all of 2019. It’s part of a larger European debacle which began in earnest with Angela Merkel’s foolhardy invitation in the summer of 2015 to irregular migrants to come to Germany.

Nearly 1.9 million people have illegally crossed into the EU from the Middle East and North Africa since the start of 2015.

This utter failure to deter sea crossings (while instead helping vulnerable people closer to their place of origin) has led to a huge amount of human suffering. Tragically, nearly 20,000 people have lost their lives in such crossings since 2015. And 13,000 people have been left without shelter following the fire that destroyed the Moria camp on the Greek island of Lesbos.

Illegal Channel crossings to the UK – which are over five times higher so far this year than last (see our Tracker) are not just potentially deadly and needless – they are GROSSLY UNFAIR to the British public, to legal migrants and to genuine refugees. Here is why:

ILLEGAL ENTRY + ASYLUM ABUSE = UNFAIRNESS

  1. Illegal entry is not just a security and health risk but also an injustice to all those patiently waiting in line, paying visa fees and observing the rules. They and the public have to abide by the law and expect others to do so too – Criminal traffickers and those paying them must not be rewarded for breaking it.
  2. Our asylum system is so easy to game that it seems to be begging to be exploited; sadly this is occurring on a huge and rising scale. That makes a mockery of our generosity, wastes huge amounts of taxpayer money, destroys support for refugees and delays the genuine asylum claims.
  3. Our immigration system should attract the best and brighest – it should not incentivise people to flout the rules. The Channel situation has created a Gordian knot of UNFAIRNESS which the government must start to unravel now.

Illegal entry

Some assert falsely that it is not illegal for migrants to enter the UK after crossing the Channel by small boats.

The truth is that this is not an authorised way of entering the UK and those who come to the UK this way are doing so illegally.

Section 24 of the Immigration Act 1971 in particular sets out criminal sanctions for various types of unlawful migrant behaviour, including illegal entry and overstaying.

Section 21(1)(a) says: ‘A person who is not a British citizen shall be guilty of an offence punishable on summary conviction with a fine … or with imprisonment for not more than six months, or with both … if contrary to this Act he knowingly enters the United Kingdom in breach of a deportation order or without leave.’

Meanwhile section 24A makes seeking to obtain or obtaining leave to enter the UK by deception a criminal offence and S2(4) & (5) Asylum & Immigration Act 2004 makes entering the UK without a passport punishable with two years’ imprisonment (see guidance).

Some claim that those who seek asylum cannot be prosecuted in light of international law.

We recently saw that 98% of those who crossed the Channel in 2020 so far have claimed asylum.

However, someone can be charged with entering the UK without a passport under S2 Asylum & Immigration (Treatment of Claimants etc) Act 2004 and Crown Prosecution Service guidance makes clear that ‘there is no requirement to await the outcome of an asylum application before making a charging decision’.

Section 31 of the Immigration and Asylum Act 1999 provides a defence against prosecution for certain offences committed prior to a grant of Refugee Status where the individual shows good cause for illegal entry or presence and brought themselves to the attention of the authorities.

This is based upon Article 31 of the 1951 Refugee Convention which states that refugees must come ‘directly’ from the territory where life / freedom was threatened or they may be liable for ‘penalties, on account of their illegal entry or presence’.

Some suggest that the very presence of this defence tacitly encourages illegal entry. However, its impact has been exacerbated because of the body of case law which has helped to entrench the wide-ranging interpretation and impact of this defence (e.g. R v Asfaw, 2008). This must be addressed by the government urgently so as to discourage illegal entry.

Otherwise deadly criminality is given tacit approval and encouraged.

Asylum abuse

Our asylum system is so vulnerable that sometimes it almost seems like it is begging to be exploited. Such abuse is increasing.

Channel crossings are the most recent visible symbol.

Given that those crossing the Channel have failed to seek asylum while spending time in other safe countries such as France, Spain or Italy, the overriding motivation is unlikely to be to find safety.

This is the phenomenon of mass asylum shopping which was given a turbo-boost by Angela Merkel’s invitation to asylum seekers to cross numerous safe countries to come to Germany in 2015.

Economist Paul Collier argued that ‘the massive rise in demand triggered by the invitation from Germany further increased demand for [people] smuggling by criminal syndicates’ across the Mediterranean (see article).

Europe has paid a price over the past few years with two million people crossing into the Schengen area illegally.

New Home Office figures show that the large majority (81%) of Channel migrants whose application for protection has been considered this year have no credible asylum claim in the UK (see last paragraph of Q29 in in this Home Affairs Committee evidence transcript).

This is worrying as the thousands of claims resulting from these crossings will now crowd out those of genuine refugees and waste taxpayers’ money.

In 2020, the claims of Channel crossers were rejected for two broad reasons.

Firstly, 71% of applications were refused because the claimant had ‘travelled through a safe country before they came here’.

As the government often states, refugees should claim asylum in the first safe country they reach.

Indeed, Article 31(1) of the 1951 Refugee Convention says that refugees must be “coming directly from a territory where their life or freedom was threatened” otherwise they may be open to being penalised for entering illegally.

UK law should be tightened to ensure that refugees who pass through safe countries are not able to subsequently seek protection here.

It is fundamentally important that this asylum abuse is identified and tackled and that legislation is passed in order to prevent it from occurring and stop it from growing.

Fraudulent and ‘spurious’ claims have helped create a situation in which our overstretched bureaucracy is having to work on nearly 110,000 claims, with diminishing productivity and ever-growing backlogs.

And as one MP recently noted: “I think there is a bit of a perception that a large number of people crossing the Channel are being a little bit disingenuous in their asylum claims and also, I know this concerns my own constituents, about the cost to the taxpayer of some of those spurious claims and subsequent appeals.”

Secondly, 10% of those claiming asylum after crossing the Channel were refused because they were not deemed to be genuine refugees.

It is surprising that the share was not higher than this given the anecdotal evidence we have seen of the number of economic migrants among the illegal population in Europe.

According to the sad verdict of one photojournalist who has visited dozens of refugee camps: “What I’ve witnessed over the years is people, who by their own admission are not refugees, taking advantage of European gullibility and generosity” (see full article).

Previous estimates (for instance by a top EU official) suggested 60% of illegal migrants who entered the EU during one month in late 2015 were economic migrants who were not entitled to asylum or humanitarian protection (see article).

The charity, Human Relief Foundation, visited Calais a few years ago and found many people there were not refugees at all, but economic migrants. Deputy chief executive Kassim Tokan was quoted as saying many migrants in Calais had no ‘valid’ reason for going to the UK and should have stayed at home.

The overwhelming number of economic migrants among those found to be crossing the Mediterranean from Libya has been noted by the United Nations Human Rights Commission.

One report suggested seven in ten were not genuine refugees. Meanwhile, it appears the number of people crossing the Channel after entering Europe from Libya are increasing (see article).

Some claim that asylum abuse is a figment of the imagination and that even invoking the possibility of it is ‘scaremongering’. However, as this article makes clear, such abuse has been clearly identified by a range of independent organisations, judges and even by the government itself, which says the abuse is increasing.

A senior Home Office official recently told a Parliamentary Committee of the problem of ‘spurious claims’ (see Q80 of link) , at late stages, for asylum.

If asylum abuse is increasing that is not surprising, as the government have overseen a period in which enforcement has got weaker and weaker. Last year saw the lowest number of enforced returns of those with no right to be in the UK since records began.

Returns of failed asylum seekers fell from around 15,000 in 2004 to just 4,000 in 2018. The 2019 figure is unclear because the government have made it much more difficult to verify the data on this.

These removals are too often frustrated by last minute challenges submitted hours before a scheduled flight.

The government has stated: “These claims are very often baseless and entirely without merit, but are given full legal consideration, leading to removal being rescheduled.”

The British people have a right to expect the asylum system that they fund to the tune of nearly £1bn per year (equivalent to the salaries of more than 30,000 Police Officers) is run efficiently, effectively and fairly but also that it is reserved only for the most vulnerable.

Anything else perpetuates gross injustice.

A MOCKERY OF UK LAW

The Channel crisis is making a mockery of UK law.

The British public, legal migrants and genuine refugees will all lose out, while those illegally entering from safe countries after paying crimiinal traffickers will be rewarded.

That is simply wrong.

It’s hardly surprising that three-quarters of the public (74%) now think the government is handling immigration badly. The share has risen by 30 points since March.

To reverse the trend, a significant shift in policy is required.

10th September 2020

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