Two months after Prime Minister Rishi Sunak declared “stopping the boats” as one of his key five priorities in 2023, Home Secretary Suella Braverman announced the proposal of the Illegal Migration Bill on March 7, 2023, which, in her words, is designed “to do exactly that.”
Braverman prefaces her announcement by pointing to the 45,000 people who made the “unsafe, unnecessary, and illegal journey across the channel” in 2022. She claims that this has “overwhelmed” the UK’s asylum system, as evidenced by the fact that “we’re now spending almost £7 million a day on hotels.”
She continues: “This Bill will mean that if you come here illegally, you will not be able to stay. You will be detained and removed to your home country if safe, or a safe third country like Rwanda.
“It’s not fair that people who travel through a string of safe countries and then come to the UK illegally can jump the queue and game the system. This Bill will bring an end to that. Enough is enough. We must stop the boats.”
A common argument against small boat crossings is that asylum seekers have passed through France and other European countries that are commonly perceived as “safe” for asylum seekers, before arriving in the UK.
Under the 1951 Refugee Convention, asylum seekers are under no legal obligation to seek asylum in the first safe country they set foot in. This is also an interpretation that is upheld in UK case law.
Article 31 (1) of the Convention only states that countries cannot impose penalties on asylum seekers “on account of their illegal entry or presence” who are “coming directly from a territory where their life or freedom was threatened,” given that they “present themselves without delay to the authorities and show good cause for their illegal entry or presence.”
In 1999, a judge ruled that under the Refugee Convention, “some element of choice is indeed open to refugees as to where they may properly claim asylum. I conclude that any merely short term stopover en route to such intended sanctuary cannot forfeit the protection of the Article [31].” In other words, asylum seekers briefly passing through other countries when travelling to the UK does not mean they did not “come directly.”
Guidelines from the UNHCR also state that: “It is understood that this term also covers a person who transits an intermediate country for a short period of time without having applied for, or received, asylum there. No strict time limit can be applied to the concept ‘coming directly’ and each case must be judged on its merits.”
However, this is now something that is penalized by the government’s flagship Illegal Migration Bill.
One of the main provisions of the bill is to detain and remove anyone who arrives in the UK illegally. The bill lists four main criteria for an entry to be classified as illegal.
An entry is illegal if the person has breached immigration rules upon entry, has arrived in the UK on or after March 7, 2023, did not come directly from a country in which their life or freedom was threatened, and requires leave to enter or remain in the United Kingdom but does not have it.
Elaborating on the third condition, the Bill further states that “a person is not to be taken to have come directly to the United Kingdom from a country in which their life and liberty were threatened as mentioned in that subsection if, in coming from such a country, they passed through or stopped in another country outside the United Kingdom where their life and liberty were not so threatened.”
However, as the Rwanda plan faces legal challenges, the UK currently does not have any working agreements with a third country for removals. For the same reasons, when the government first launched new inadmissibility rules after leaving the EU, only 83 people had their claims declared inadmissible, and only 21 were removed from the UK between January 1, 2021, and September 30, 2022.
The Office of The High Commissioner for Human Rights states in a press release: “In the absence of viable removal arrangements with third countries, or without adequate operational capacity to remove large numbers of asylum-seekers, thousands can be expected to remain in the UK indefinitely in precarious legal situations.”
On the Illegal Migration Bill’s tackling myths factsheet, The Home Office states that “legislating so that people who come here illegally have their asylum claims declared inadmissible in the UK is unprecedented” is a myth. They also claim that it is “an established part of international asylum procedures, employed by other countries, including the EU where it is operated under the Dublin Regulation.”
The Dublin Regulation is a legally binding system in the EU that determines the state responsible for processing each asylum claim. One of the main rules of the Regulation is that asylum claims should be processed in the first Dublin country the applicant arrives in. This means that a Dublin country could send an applicant back to the first EU country they arrived in, given that an applicant is proven to have entered that country previously or made a claim there.
The intended purpose of the Regulation is to ensure that “no Member State should shoulder a disproportionate responsibility and that all Member States should contribute to solidarity on a constant basis.”
However, Amnesty International UK has criticized that: “It is clear the system greatly benefits countries like the UK and is very unfair to countries like Greece and Italy.”
The Dublin Regulation no longer applies to the UK after Brexit.
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