HOME AFFAIRS SELECT COMMITTEE ON CHANNEL CROSSINGS

Liberal Democrats for Seekers of Sanctuary have submitted evidence to the Home Affairs Select Committee on Channel Crossings.

Here is the full version of the submission:

Liberal Democrats for Seekers of Sanctuary are an Associated Organisation of the Liberal Democrat Party. We support asylum-seekers and refugees who lack a formal political voice, and we urge all institutions and society generally to treat them with equal concern, respect, and dignity. Our evidence is submitted in order to draw attention to more effective, humane and economical ways of controlling the UK border.

  1. Controlling the UK border

Everything else we shall say in this submission starts from the premise that the UK should be able to have effective control over its sovereign borders, for those leaving the UK as well as those arriving, so that we are able to know who currently resides in the state and whether they do so legally with unexpired entry visas. It can and must control its borders in accordance with its international human rights and refugee law obligations.

In respect of regularised travel, the UK has effectively ‘outsourced’ much of its border control to land, sea, and air passenger carriers, who check travel documents to confirm identity and entitlement to enter the UK.

Yet, whereas the vast majority of those entering the UK do so regularly, not everyone does – as the recent channel crossings have demonstrated.

Recent governments have resorted to physical means to prevent irregular entry. The Communiqué issued after the 35th UK-France Summit at Sandhurst on 18th January 2018 devotes paragraphs 48-55 to Migration, “Modern Slavery”, Human Trafficking, and joint management of the shared border between the United Kingdom and France. Paragraph 53 refers to an additional €50m additional UK financial support for 2018. It is unfortunate that the communiqué in its paragraphs 52 and 55 speaks of illegal migrants and illegal migration when no distinction is made between economic migrants subject to the Immigration laws currently in force and those seeking asylum. It is always legal to seek asylum under the 1951 UN Convention relating to the Status of Refugees, as stated in section 2 below.

Those crossing the Channel are using international waters; labelling such crossings as ‘illegal’ is wrong and does nothing to stop it happening. What is criminal is the activity of people smugglers and people traffickers. However, we need to reflect on the reason people smugglers operate in the Channel: it is because there are no safe and legal routes for those present in Northern France who seek asylum in the UK to do so. Hence, rather than travel on a relatively inexpensive commercial carrier across the channel, asylum-seekers are forced to pay people smugglers extortionate amounts for the pleasure of travelling in an unsafe dinghy; worse still, upon arrival, they may get trapped in modern slavery conditions, unable to leave even if they so desire.

  1. Legal framework

The UK has ratified the 1951 Convention relating to the Status of Refugees and the 1967 Protocol, which expanded the Convention’s application to refugees coming from outside Europe. They bind the UK in international and indeed in domestic law. The UK has also ratified European and international human rights treaties, most relevantly the European Convention on Human Rights (ECHR), the International Covenant on Civil and Political Rights (ICCPR), and the Convention against Torture (CAT) which contain additional non-refoulement obligations constraining the scope of the UK’s deportation powers. The UK’s withdrawal from the EU does not affect the scope and breadth of these treaties. The Dublin III regulation referred to in paragraph 52 of the Sandhurst communiqué will cease to have effect in the UK at the end of 2020. In any case it is questionable whether this EU law can override the UN 1951 Convention, which does not require asylum seekers to apply for asylum in any particular safe country.

  1. The people smugglers’ market

The oral evidence recently given to HASC by the relevant officials tells us that those who have been caught crossing the Channel recently are overwhelmingly asylum seekers. Those who are coming here as tourists, students or to a job meet the requirements of Immigration law and take ordinary commercial routes into the UK. Those who wish to seek asylum do mostly come by the ordinary routes, as the number of asylum seekers recorded by the Home Office shows, but clearly not in every case.

 

There would seem to be two possible explanations for this sorry state of affairs. The first is that they cannot get the necessary documentation to allow them to buy a commercial ticket to travel, as airlines or shipping companies will not take those who do not have a valid entry document for the UK. The second is that some asylum seekers have no confidence in receiving a fair hearing when they apply for asylum. If that is the explanation, it is a condemnation of the ‘hostile environment’ created over the last ten years or more by the Home Office, and a negation of British fair play and sense of justice.

On the face of it there is a straightforward and inexpensive solution to the first explanation. The UK could enable those wishing to seek asylum to indicate their wish and present a concise prima facie case at a British embassy, consulate, or border control point. They could be asked to sign a declaration that they were travelling to claim asylum in the UK, providing their name, nationality and a statement of their ID document (including any of which they have been deprived). They could then be issued with a temporary permit to enter the UK to claim asylum which they would present on arrival.

Dealing with the second explanation requires a review of the Home Office’s current practices. The guidance to Home Office staff ‘Asylum screening and routing Version 5.0’ of 2nd April 2020 is a document which should enable the Committee to consider all aspects of current Home Office practices. Unfortunately the version available online is heavily redacted, not least in its section on clandestine arrivals. LD4SOS would welcome the Committee having the opportunity to consider in evidence an unredacted copy of this staff guidance.

 

Two aspects of current Home Office practice might, if changed, make the process of considering asylum applications more humane at reduced cost to the taxpayer. Firstly, the present significant proportion of asylum cases lost on appeal says that money could be saved by getting decisions right first time. One way of doing this would be by having a culture of belief, where any statement that could be checked was checked but where those that could not be checked were accepted for the purposes of processing asylum applications. It may also be that costs could be further saved by reducing or abandoning administrative immigration detention except perhaps for the night before a deportation when all appeals have been exhausted. Secondly, allowing asylum seekers to work while their claim is considered and thus to support themselves instead of relying on the Home Office is likely to provide an incentive to the Home Office to complete their assessment of an asylum application promptly. If in the end an asylum seeker’s claim was rejected and they left the country, their experience of work in the UK would allow them to apply for work from abroad and hope to find an employer who would support an application under the UK Immigration laws. A failed asylum claim should be no bar to this.

  1. The Dublin Regulation

The oral evidence given to HASC by the relevant officials on 3 September 2020 reveals that those asylum seekers who have been caught crossing the Channel recently have overwhelmingly been sent to other EU countries under the Dublin Regulation; they indicated that no similar return arrangements exist at present with other states. The compatibility of the Dublin regulation with international refugee law and international human rights law is a longstanding concern, and indeed ‘Dublin returns’ to certain EU member states have been previously halted by both the European Court of Human Rights and the European Court of Justice on the ground that they would breach the ECHR and EU law, respectively. As the call for evidence notes, the Dublin regulations contain certain exceptions, most notably in respect of family reunion: it is incumbent on UK authorities to inform asylum applicants, including those crossing the channel, of the existence of such exceptions. It is also important to note that, while the Regulation permits the UK – within a time limit – to request a Dublin transfer, it does not require it to do so: given that, according to the oral evidence referenced above, only 6-7% of asylum applicants in the EU submitted their applications in the UK, it would be morally right for the UK to consider carefully the need for such requests. In any event, the Dublin regulation will cease to have effect in the UK on 31st December 2020 and seems unlikely to be replaced with a similar arrangement.

 

  1. Ending Channel crossings

The measures so far proposed to reduce the attractiveness of unorthodox modes of travel to the UK require confidence among asylum seekers that they will be fairly treated on arrival. They know they are risking their lives, as the deaths crossing the Mediterranean and in refrigerated lorries show, not to mention those who have frozen to death in the hold of an aircraft. This suggests that they have good reasons not only for seeking asylum but for seeking it in the UK. What is needed to allow them to come and claim here is a reduction in the hyperventilation surrounding the issue of asylum seekers, and here Government must take the lead. The total numbers seeking asylum in the UK are much lower than those seeking asylum in France or Germany, to take but our two nearest neighbours. In terms of efforts made to settle individuals in the UK, who by definition are refugees not asylum seekers, the UK has a not trivial positive record, but is still way behind other countries. The UK has an image of itself as a country with a proud history of saving the persecuted by offering sanctuary here. It can refer to its reception of those who suffered from the pogroms of Eastern Europe in the late 19th century as well as from the Kindertransport in the late 1930s. Pressurising asylum seekers to go elsewhere is a betrayal of that proud tradition. The Ugandan Asians are just one more recent group to benefit from this welcome to asylum seekers and may be followed by some Hong Kong residents who may decide to leave given the worrying recent developments. It is up to government to show that it processes asylum claims strictly according to whether the claimants meet the requirements of the 1951 UN Convention, and to show that those who wish to work here must apply under UK Immigration law, so that there can be no question of admitting economic migrants as asylum seekers. Ensuring this distinction is maintained and that asylum seekers are greeted with a culture of belief would go a long way to ensure that Britain’s reputation as a place of sanctuary is restored, and that we benefit, like France and Germany, from the new arrivals who have sought asylum here because they want to contribute to this country.