On 25 November 2021, the House of Lords is scheduled to debate a motion moved by Baroness Hoey (Non-affiliated) on the “number of migrants arriving in the United Kingdom illegally by boat”.
What is a migrant and why do definitions matter?
Debates on undocumented migrants crossing the Channel include a variety of terms that may be subject to interpretation. This article uses the International Organisation for Migration (IOM) definition of a migrant, which reflects “the common lay understanding of a person who moves away from his or her place of usual residence, whether within a country or across an international border, temporarily or permanently, and for a variety of reasons”.
The question of whether an undocumented migrant who enters the UK without immigration permission does so illegally, and whether this means they should therefore be prosecuted and/or removed, has been the subject of continued debate in recent years. Views on the status of those seeking asylum in particular can differ depending on the interpretation of terms used in the relevant legal framework.
Government ministers, including Prime Minister Boris Johnson, have criticised undocumented migrants who try to get to the UK by boat as “seeking to arrive illegally”. This is often on the basis that it is a criminal offence under section 24(1)(a) of the Immigration Act 1971 for a person who is not a British citizen to knowingly enter the country without leave.
However, migrants who enter the UK without leave may legitimately make a claim for asylum subject to certain conditions. Article 31 of the 1951 Refugee Convention sets out that these include if the individual comes “directly” from a territory where their life or freedom is threatened, and that they “present themselves without delay to the authorities and show good cause for their illegal entry or presence”. Refugees meeting these criteria have a statutory defence against certain immigration offences, including illegal entry. In addition, a person who makes an asylum claim has the legal right to remain in the UK whilst their application is considered. There is also currently no international legal requirement for asylum to be claimed in the first safe country entered. Before Brexit, the UK was part of the Dublin III regulation arrangements. This had previously enabled the UK to return some asylum seekers to EU member states without considering their asylum claims.
Undocumented migrants who do not claim asylum on arrival may be subject to illegal entry offences and face prosecution and/or removal. However, on 8 July 2021 the Crown Prosecution Service published updated guidance for the handling of cases “involving illegal entry to the UK via small boats and lorries”. This said that passengers on small and large boats were “unlikely” to face prosecution, with the focus reserved for those that facilitate journeys. It also said that an offence of illegal entry under the 1971 act was “unlikely” to have been committed in cases where a boat was intercepted.
How many migrants are arriving by boat?
There are no precise totals available on the numbers of undocumented migrants arriving by boat. The Home Office does not publish a regular statistical series on either the numbers of migrants detected as having arrived in the UK by boat or estimates. However, provisional figures on detections are released into the public domain on an occasional basis, including through routes such as press reports.
For example, 1,185 people were ‘intercepted’ and brought ashore by Border Force on 11 November. In addition, a further 99 people were prevented from reaching the UK that day by French authorities. This was a new daily record for recorded migrant arrivals by boat, representing an increase on the earlier daily record of 853 people crossing the Channel set on 3 November.
The daily total for 11 November meant that at least 23,000 people have now crossed the Channel by boat since the beginning of 2021. With attempted journeys continuing, this figure is expected to rise further before the end of the year. In addition to those who arrived, in late October the Government noted that the French authorities had prevented more than 15,000 people from crossing between January and September 2021 inclusive.
The 23,000 figure for the year to date represents a significant increase on the approximately 8,500 arrivals documented in 2020. In turn, this was a substantial increase on the 1,800 arrivals recorded in 2019 and the 300 reported in 2018.
A large majority of people who cross the Channel are thought to claim asylum once they are in the UK. In September 2020, Abi Tierney, director general of UK Visas and Immigration, said that 98% of the approximately 5,000 people who crossed between January and September 2020 claimed asylum.
In September 2021, the Government contextualised small boat arrivals as a proportion of the wider cohort of “irregular” migration. Tom Pursglove, Parliamentary Under Secretary of State at the Home Office, said that 11% of all irregular migrants arrived in the UK by crossing the Channel in small boats in 2019. This compared with 32% arriving by air and 51% travelling by surface routes including lorries. In 2020, the proportion of irregular migrants crossing the Channel in small boats rose to 50%, with those using air and surface routes falling to 14% and 32% respectively.
Successive governments have sought to reduce the numbers of undocumented migrants crossing the Channel through bilateral agreements with France. Examples of such activity in recent years include:
- In 2018, the UK and France agreed a treaty “concerning the reinforcement of cooperation for the coordinated management of their shared border”. Known as the Sandhurst treaty, after the location of the summit at which it was agreed, the agreement committed the UK to provide additional financial support for border and migration-related measures.
- In January 2019, the UK and France agreed a “joint action plan” to “strengthen efforts against migrant activity” in the Channel. This followed then Home Secretary Sajid Javid having declared a “major incident” over Channel crossings in late December 2018.
- In October 2019, the UK and France agreed an “enhanced action plan” on the issue. Home Secretary Priti Patel and French Interior Minister Christophe Castaner set an “ultimate goal” for attempts to cross the Channel in small boats to become an “infrequent phenomenon” by spring 2020.
- In July 2021, Ms Patel and French Interior Minister Gérald Darmanin issued a joint statement on further cooperation to prevent irregular migration. The agreement included a pledge to strengthen law enforcement deployments along France’s northern coast; enhanced intelligence-sharing; and greater use of surveillance technology. The UK agreed to provide €62.7 million in further funding in 2021/22 in support of the agreement. The July statement added that both countries supported the idea of a UK-EU readmission agreement following the end of the Dublin III regulation in the UK.
- On 15 November 2021, Ms Patel and Mr Darmanin agreed to strengthen operational cooperation further. In a joint statement, the UK side said they had set out their shared “joint determination to prevent 100% of crossings and make this deadly route unviable”.
The Government has described irregular attempts to enter the UK using small boats as “unsafe, unfair and unacceptable”. It has pursued this issue domestically as follows:
- In August 2020, Ms Patel appointed Dan O’Mahoney to the new post of Clandestine Channel Threat Commander. Mr O’Mahoney was charged with “leading the UK’s response to tackling illegal attempts to reach the UK”.
- In March 2021, the Home Office published a consultation on its ‘New Plan for Immigration’. The plan had three listed objectives: to “increase the fairness and efficacy of our system”; “deter illegal entry into the UK”; and “remove more easily from the UK those with no right to be here”. In its consultation response, published on 22 July, the Home Office said that around three quarters of respondents said they opposed policies set out in the plan.
- On 6 July 2021, the Government introduced the Nationality and Borders Bill in the House of Commons. This would implement many of the plans set out in the New Plan for Immigration, including broadening criminal sanctions for offences related to illegal entry. It would also restrict access to the UK asylum system for irregular migrants; allow for offshore processing of asylum claims; and codify the UK’s interpretation of concepts in the 1951 Refugee Convention. The Government has described the bill as the “cornerstone” of its attempts to “fix the broken asylum system”.
- In September 2021, Ms Patel was reported to have authorised Border Force to use “pushback” tactics to turn migrant boats around in the Channel. It was subsequently reported that the Government would be likely to lose any legal challenge to the plans.
Groups such as Migration Watch UK have welcomed provisions in the Nationality and Borders Bill, including those aimed at deterring unauthorised Channel crossings and “abuse” of the asylum system. However, in written evidence the UN Refugee Agency (UNHCR) “regretfully” reiterated its view that the bill was “fundamentally at odds” with the Government’s stated commitment to uphold the UK’s international obligations under the Refugee Convention. In addition, the Refugee Council has criticised elements of the bill, including provisions that would lead to differentiation between refugees based on how they arrive in the UK and those formalising an existing immigration rule on inadmissibility deemed “unworkable” due to a lack of return agreements with EU countries.
The House of Commons Home Affairs Committee is currently undertaking an inquiry into Channel crossings, migration and asylum-seeking routes through the EU. On 17 November, the committee took evidence from several witnesses. Tom Pursglove is reported to have said that boats are now the “route of choice” for Channel migrants and admitted there had been “difficulties securing returns” to date. The committee heard that only five arrivals by boat had been returned to the EU this year, compared to several hundred a year before Brexit. Mr Pursglove told MPs there was no UK-EU returns agreement in place yet. Dan O’Mahoney confirmed that using marine fencing to block boats from UK beaches had been considered and rejected as unsuitable.
Cover image by charlemagne on Pixabay.