Richard North, 11/08/2020  

Faced with the embarrassing situation where our own version of the "boat people" are daily demonstrating that the UK does not have control of its borders, as promised by Brexit, prime minister Johnson has entered the fray to do what he does best: burble incoherently and confuse the situation.

Thus we have the idiot chuntering about wanting to look at the UK's "legal framework" on the removal of what he calls "illegal migrants" amid a row with France over an increase in boats crossing the English Channel.

Johnson, we are told, says the current rules mean it is "very difficult" to remove failed asylum seekers once they arrive on British shores, encouraging "cruel and criminal gangs" to profit from the crossings.

We then get Number 10 supposedly clarifying the prime minister's burbling, explaining that he was specifically referring to the European Union's Dublin regulations, which are said to be "designed to identify which member states are responsible for considering a person's request for asylum".

The rules, we are thus informed, are often used to argue that asylum seekers who have passed through another member state on their way to the UK should be returned to that country. But Downing Street believes that the "inflexible and rigid" regulations are being "abused".

What is extremely puzzling about this intervention is that it does not seem to recognise the very fact of that thing apparently so close to the prime minister's heart – Brexit. We left the EU on 31 January last and, while common asylum rules continue to apply until the end of the year, we are working our way out of the system.

On that basis, if we are to be looking at the UK's "legal framework" pertaining to migrants travelling from the EU, then we should no longer be concerning ourselves with EU law – the writ of which has only months to run. We are back dealing directly with international law.

Specifically, we will be bound directly by the United Nations Convention relating to the Status of Refugees, adopted in 1951, the 1967 Protocol, plus other measures such as the Protocol against the Smuggling of Migrants by Land, Sea and Air, the Safety of Life at Sea (SOLAS) and Search and Rescue (SAR) Conventions, which have relevance to seaborne migrants.

However, we are also bound by the European Convention on Human Rights, which have specific and general application to migrants, as well as case law from our own courts.

In this context, Johnson may be whistling in the wind if he wants to return the "boat people" to France. As a result of a case determined in 2000 by the UK Court of Appeal, France (and Germany) are not "safe places" to send refugees, as these face persecution "from forces other than the state".

The then Home Secretary was found to have acted unlawfully in ordering three asylum seekers to be returned to France and Germany, the effect of which was to prevent Britain deporting thousands of failed asylum seekers.

For the UK, therefore, the very limited provisions of the "Dublin system" are of little assistance, especially as Austria and Greece have been added to the UK list of "no return" countries.

This, effectively, puts us in a position of having to rely on the UN Convention, which defines the term "refugee", making it applicable to someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.

This must be applied without regard to race, religion or country of origin and, subject to specific exceptions, refugees must not be penalised for their illegal entry or stay.

This latter provision recognises that seeking asylum can require refugees to breach immigration rules. Prohibited penalties include being charged with immigration or criminal offences relating to the seeking of asylum, or being arbitrarily detained purely on the basis of seeking asylum.

Importantly, the Convention also contains various safeguards against expulsion, known as the principle of non refoulement (non-return). This is so fundamental that no reservations or derogations may be made. Those accepted as refugees cannot be expelled or returned against their will, in any manner whatsoever, to a territory where they fear threats to life or freedom.

In the longer term, the best option for any European state – including the UK – is the return of migrants to their countries of origin, where they can no longer validly claim refugee status.

This has been the policy of the EU, through its Return Directive, which has also negotiated readmission agreements with a number of countries. Migrants from these countries can then be returned without falling foul of international law.

Currently though, EU asylum rules are under revision, based on COM(2016) 197 final, published on 6 April 2016. However, the regulatory programme seems to have run into the sand in 2018, with very little development since then, that I can discern.

Earlier this year, the EU was supposed to be bringing forward a "New Pact on Migration", which is currently in the Commission's work programme. Mainly because of Covid-19, though, this programme has stalled. Other than a promise that the Pact will be adopted as swiftly as possible, there has been no further news.

Therefore, even if we were still in the EU, there would not be much prospect of relief. But since the acquis will shortly cease to apply, any developments are largely of academic interest. We will soon be a third country, outside the loop. To enable us to return migrants to their countries of origin (where it is safe for them to be returned), we will have to negotiate our own readmission agreements.

Pending these, about the only current option is to prevent migrants from entering UK territory. And since our Border Control vessels, and any Royal Navy assets that we might use, cannot carry out enforcement roles in French waters without their permission, we are largely in the hands of the French.

Here, as we have seen, a price tag of £30 million has been suggested, without any guarantee of satisfaction. And we're not likely to get much sympathy from the French. While in 2019, they processed 151,070 asylum applications. We had to deal with around 36,000.

Given that there is very little we can do under international law to prevent the flow across the Channel, we thus have another example of the "double coffin lid". As we shed EU law (for what good it would have done us), we get caught by international law. In this case, we not only fall back on the UN Convention but also the European Convention on Human Rights.

While we might at some point consider withdrawing from the European convention, that option is not available with UN law which has acquired the status of customary law, applicable regardless of whether we have signed up to it.

That leaves, possibly, one final option – the application of the safe country of asylum concept, via international law. This can be applied when "asylum-seekers/refugees may be returned to countries where they have, or could have, sought asylum and where their safety would not be jeopardised".

However, the caveat on not being subject to persecution or threats to safety and liberty still apply, which may rule out returning people to France. But, in any event, nothing can be achieved without international cooperation, which puts us right back where we started. Johnson can chunter all he likes. He's not in control.

Also published on Turbulent Times.

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