Over the Christmas and New Year period, reports of people travelling to the UK across the English Channel received heightened media attention and on 28 December 2018, the Home Secretary, Sajid Javid, declared the rising number of attempted crossings – 230 people have tried since November – a “major incident”.
Mr Javid cut short his holiday to address the crossings and held an urgent call with his French counterpart in order to discuss the issue. The Home Secretary also commissioned two extra Border Force ships to the English Channel to try to disrupt further crossings. Media outlets across the political spectrum have described the phenomenon as a “growing crisis”.
Most of the reported cases have been discovered off the coast of Dover as people have attempted to cross the Channel from France into the UK in small boats. The majority is thought to be from Iran or Syria. Six Iranian men were found on a beach near Deal in Kent on 30 December 2018, while on Monday, a group of 12 Iranians came ashore near Lydd-on-Sea, in Kent.
According to The Guardian, between January and November 2018, at least 250 migrants were intercepted in the Channel, including 65 people in the last three weeks of November alone. It has been suggested that better weather conditions and calmer seas, as well as the role of smuggling gangs hoping to exploit the holiday period, have contributed to an increase in the number of attempted crossings in the last few months. Others have pointed to the fact that conditions for migrants in France have worsened in recent weeks.
After being brought ashore, people seeking to enter the UK in this manner are often either detained or handed over to immigration officials.
However they arrive in the UK, individuals are entitled to claim asylum by making an application to the UK Home Office. The UK has a legal duty to consider such applications and (subject to so-called “Dublin returns”, see below) must grant refugee status to applicants who demonstrate that they are unable or unwilling to return to their country of origin, because of a well-founded fear of persecution due to a reason set out in the 1951 Refugee Convention (race, religion, nationality, political opinion or membership of a particular social group). If an application for asylum is successful, leave to remain in the UK will normally be granted for five years, after which the applicant can apply for indefinite leave to remain (“ILR”).
According to official figures, 539 people made the crossing in 2018, 80% of which were attempted in the last three months of the year. According to statistics published by the BBC, around 26,350 applications for asylum were made in the UK in 2017. The Home Office made approximately 21,290 decisions with only around 31.8% of these applicants being successful in gaining some form of protection at first instance. The figure rises significantly on appeal.
To what extent the infamous “Dublin Regulation” will be applied in respect of so-called “channel migrants” remains to be seen. The Dublin Regulation establishes the State responsible for the examination of asylum applications lodged within the territory of the EU member states. The criteria for establishing responsibility run, in hierarchical order, from family considerations, to recent possession of visa or residence permit in a Member State, to whether the applicant has entered EU irregularly, or regularly. It also provides for the transfer of an asylum seeker to that Member State. Much has been written about the Dublin system in recent years, due to the fact that the responsible Member State will often be the state through which the asylum seeker first entered the EU.
One effect of the Dublin Regulation in relation to the channel migrants is that, even if they were not returned to their country of origin, they could face being returned to the country where they entered the EU rather than being able to have their asylum applications determined in the UK.
There are practical obstacles to enforcing the Dublin Regulation in respect of people crossing the Channel, however, due to the difficulties in proving with certainty the country through which someone arriving in the UK first entered the EU, as many people will have transited through several different countries since the point of first entry. Further, the Dublin Regulation has faced increasing criticism since the so-called “migrant crisis” of 2015 (when it was temporarily suspended), given the burden placed on certain Member States located at Europe’s geographical extremity.
A further (and sizeable) question arises over whether the UK will be able to rely on Dublin in the future at all after Brexit. Despite the sheer length of time that has passed since the referendum and the seemingly never-ending discussions and coverage in the daily papers since that time, the issue of the UK’s future relationship with the EU on a whole range of issues (including migration and asylum) remains ever uncertain and precarious. The days when the UK could rely on the goodwill and cooperation of its European allies, in the face of categories of migration that it would rather be as far away from as possible, may well be numbered.
In the meantime, given the public statements of the Home Secretary, it seems the immediate plan of action is to try to dissuade people from attempting to come in the first place. Savid Javid has already stated publicly that the government will do “everything we can” to make sure future applicants will not succeed in seeking protection in the UK. This suggestion – that the UK is prepared to send genuine refugees to face persecution in the name of deterrence – has sparked controversy. Not only does research show that the relentless focus on policing, defence and surveillance has not prevented migrants from entering Europe (but does increase the likelihood that they will die attempting to do so), lawyers and commentators have been quick to point out that such an approach would also contravene the UK’s obligations under international law (and therefore be unlawful). At the very least, the Home Secretary’s comments demonstrate an astonishing lack of compassion.
Gherson have extensive experience dealing with asylum and international protection applications. For more information or to discuss any queries, please do not hesitate to contact us.
The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.