Policy Exchange - Stopping small boats crossing The Channel: a new ‘Plan B’, human rights and a new Act

16 Feb 2022 03:42 PM

Think Tank Policy Exchange has launched a new report calling for:

• A new plan to prevent and disincentivise dangerous and unauthorised maritime arrivals
• A new approach saying that no one, even a genuine refugee, who chooses to arrive or attempt to arrive unlawfully in the UK by small boat (from a safe country, like France) will ever be granted a right to settle in the UK, unless in the most exceptional cases
• A new three stage system applying to everyone arriving on a small boat without the right of abode in the UK
  • Stage One: apprehension of small-boat Channel crossers, and preliminary assessment
  • Stage Two: the immediate deportation (to a British overseas territory) of the ‘crossers’ for the processing of claims and assessment of circumstances.  This would be done by UK officials, on UK responsibility
  • Stage Three: people who are found to be Convention refugees would be sent to a safe third country for settlement; people who are found not to be Convention refugees would be deported to their home (safe) country – or could voluntarily go to any country willing to take them (as essentially economic migrants)

The report argues that the best possible response to the problem of small-boats arrivals, a ‘Plan A’, would be joint UK/EU patrols across the Channel able immediately to return boats to France or Belgium.   At present, France and other EU countries seem unwilling to reach an agreement to this effect.

In the absence of such agreement, Policy Exchange therefore recommends a more radical course of action, by implementing the ‘Plan B’ described above.

This new approach would be underpinned by a new Act of Parliament, which would specifically mandate each step that ministers and officials had to take.  This direct mandate from Parliament would also expressly disapply elements of the Human Rights Act that would otherwise result in years of litigation, and would prevent the successful working of ‘Plan B’.

‘Plan B’ is fully consistent with the UK’s international obligations.  The paper sets out in detail misconceptions and misunderstandings around the Refugee Convention – which have erroneously led to the belief that Channel-crossers have a legal right to enter the UK and must be allowed to stay.  The paper highlights that in fact, if they have entered the UK without permission, even genuine Convention refugees have no right to stay (though they do have the right not to be sent to an unsafe country) – whether they are granted a right to stay is at the discretion of the Government.

The report also notes that by the time decisions have been challenged and rechallenged, asylum seekers have often had an opportunity to make enough connections in the UK to be able to mount plausible claims that returning them to France or another safe country would violate their ECHR ‘right to private and family life, or in cases where there would be poor health or mental health care elsewhere, their ‘right to life’.  

The purpose of Plan A or Plan B is to stop unlawful, uncontrolled and dangerous entry into the UK.  Alongside these changes, the Government would be strongly encouraged to adopt a new policy of increased resettlements, here, in direct cooperation with the UNHCR.

Professor Richard Ekins, a contributor to the report and head of Policy Exchange’s Judicial Power Project, said:

“The crisis in the Channel warrants a game-changing and humane solution.  The crisis may well worsen as events in Ukraine continue to unfold.  It is possible to stop the small boats consistently with the UK’s international obligations and moral responsibilities.  If Plan A cannot be agreed with France, the Plan B outlined in this report is the way forward.”

Also commenting, one of the report’s contributors and Director of Policy Exchange Dean Godson, said:

“It is absolutely clear that we must do something about the ongoing small boats crisis.  We have people being exploited by ruthless smugglers and traffickers, put in extreme danger, and, tragically, in some cases, losing their lives. 

“We cannot allow this to continue.  At the moment we have thousands of people placing themselves in jeopardy, even though they are already in a safe country, trying to cross The Channel.  It is vital we now end the incentive to do so.”

Opening UK offices for asylum applications in France or other safe states would deepen rather than relieve the Channel crossing crisis – they would be a powerful ‘pull factor’, and virtually all the disappointed applicants would head for the Channel.

The plan the paper outlines would apply only to entry to the UK on small boats.  The paper argues that small-boat crossings have three particularly objectionable features:              

• Whether or not they deliberately solicit rescue attempts, they involve deliberately incurred danger and predictably result, on unpredictable occasions, in death by drowning, not least of women and children.
• By inviting the assistance of national rescue services, they involve the state as participant in the highly public spectacle of the conspicuously successful flouting of its control of irregular immigration, making the state an instrument and showing up its own impotence and a failure of democratic self-government.
• They do not depend upon, or follow the schedules, as trains, ferries, lorries, and planes do – which are means of entry that can be battened down by carriers’ liability and other penalties. They are inherently open-ended, and so potentially ever-increasing to very large numbers.

The report details further work that would need to be explored to establish relations with a safe ‘third state’, that would be willing to accept those deported from the UK who had arrived here unlawfully in small boats.

Notes to Editors

Detected irregular maritime arrivals by boat increased from virtually zero prior to 2017 to over 530 persons in 2018, then to about 1,800 persons in 2019, about 8,500 in 2020, and well over 28,000 detected in 2021. On fair weather days in 2021 daily arrivals were in excess of 1,000 per day. For these statistics, see Joint Committee Ninth Report, pp. 10-11; for figures reported since November 2021, see Migration Watch “Channel Tracking Station” (page downloaded 10 February 2022).

36 people died trying to cross The Channel in 2021. Source.

74% of those arriving by small boat in 2020 were aged between 18-39 and 87% of all small boat arrivals were male.

98% of small-boat Channel crossers, when intercepted or ashore, claim asylum. About 80% of these claims are rejected, mostly on the technically “non-substantive” basis that they should have been made in one or other of the safe countries through which the claimants passed on their way towards the Channel.  The statistics, adopted by the Joint Committee’s Ninth Report, p. 6, were supplied to the Home Affairs Committee by Abi Tierney, Director General, UK Visas and Immigration, Home Office on 3 September 2020, 29.

Averting Litigation Risk despite Compatibility with ‘Convention rights’. Our proposed ‘Special Asylum’ Bill that would be introduced (to give effect to Plans A or B) can be accompanied by a statement of compatibility under s. 19 of the Human Rights Act (which all Bills are required to have), to the effect that in the minister’s view, the provisions of the Bill are compatible with all the Convention rights.

The “Convention rights” as defined in s. 1 of the HRA do not include art. 13 European Conventions on Human Rights (ECHR) (right to an effective remedy).  The Bill would need to be having an impact on remedies, for a s. 19 to not to be possible.

HRA remedies. The Bill needs to contain not only the mandates and authorisations needed to operate Plans A or B, but also specific provision to exempt its provisions, and everything done under its provisions, from the Human Rights Act, secs. 3, 4, 6, 7 and 8.  Those are the sections of the HRA which create or define or regulate legal remedies for violation of Convention rights as defined by the HRA.  This would make it impossible to bring an action in the UK courts to establish a breach of ECHR rights relating to the case of someone who had unlawfully arrived in the UK on a small boat.

Challenge in the European Court of Human Rights would be inevitable. Whilst any challenge(s) are ongoing, nonetheless the provisions of the Act would remain in force.

“Claiming”, “applying for”, “seeking asylum” and the UK’s obligations under the Refugee Convention 1951/1967 are explained p10-14 in the report, and in further detail in Annex A.

This report was prepared by a team of Policy Exchange researchers and consultants, drawing on the expertise of colleagues in maritime law and practice, international law, constitutional law, immigration and asylum law, human rights law, border enforcement and foreign affairs. The team included Richard Ekins (Head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government, University of Oxford), John Finnis (Professor Emeritus in the University of Oxford), Christopher Forsyth (Professor Emeritus in the University of Cambridge), Dean Godson (Director of Policy Exchange), David Goodhart (Head of Demography, Immigration and Integration at Policy Exchange), Stephen Laws (former First Parliamentary Counsel and member of the Independent Human Rights Act Review), Simon Murray (barrister), Tony Smith (former Head of UK Border Force).

To see the full report, please see here.