Anti-immigrant sentiments often demand that foreigners be "sent back to where they came from," especially in the run-up to elections. In the UK, in particular, migration and border control have been contentious issues for years, since the country's departure from the European Union was based on the idea of regaining control over its sovereignty. But why is it that hardly anyone who arrives in the UK can just be sent back?
Migrants from different parts of the world continue to arrive on UK shores, typically using flimsy boats to cross the English Channel from France. This has long caused concern about the efficacy of the UK's immigration controls and the issue of control over its own borders.
In previous elections, various parties -- chiefly The Conservatives -- have announced various plans to "stop the boats" and return migrants and even refugees who reach Britain using such irregular means of travel.
But that is easier said than done, as people arriving on dinghies in southern England can simply not be told to take a 180-degree turn and go back to France.
A conflicting mixture of British, European, international and maritime law governs what authorities can and cannot do with people who reach British territory by using irregular pathways.
There is a difference in law between those intercepted at sea and those who only are picked up by officials once they physically reach the shore.
With those picked up at sea, the imperative to save lives above all else reigns supreme over all other considerations, with international maritime law highlighting what particular steps need to be taken and in what order.
The United Nations Convention on the Law of the Sea (UNCLOS), ratified in 1994, and the International Convention on Maritime Search and Rescue (SAR Convention), enacted in 1985, jointly state first of all that people at sea legally have to be intercepted if they are found to be "in danger of being lost."
In other words, people on migrant boats can by definition not be left to their own devices in what is one of the world's busiest shipping lanes and therefore incredibly dangerous to navigate.
These conventions further stipulate that those picked up at sea are not allowed to be taken to any other country other than that of the flag of the ship which rescued them. The only exception to this rule is when there is clear permission to take those rescued to another country, such as France.
In the example of the UK, this would mean that after each interception, British boats would have to bring the people they saved at sea back to Britain -- or contact French authorities to request returning the migrants there in every single instance.
If, on the other hand, a French patrol boat intercepts migrants on a dinghy, they are equally bound by law to take them back to France -- unless they have good reason to contact British authorities and request that they take them over.
Yes to stopping boats but no to accepting returns:
However, the two countries could, in theory, also strike an agreement that would allow all migrants intercepted at sea by British vessels to be returned to France under a blanket deal. However, no such deal exists between the United Kingdom and France.
In fact, the French government strongly protested against a British proposition in 2021 of using the British Navy to force migrant boats to turn around in the English Channel and head back in the direction of France.
France stressed at the time this suggestion, which had been floated by one of the previous UK governments under the leadership of Prime Minister Boris Johnson, would be in direct breach of the aforementioned stipulations of international maritime law.
Since Britain's departure from the European Union (Brexit) in 2020, any major cooperation or rapprochement on immigration issues between the UK and France appears to be a somewhat elusive idea. The two nations have signed agreements to work together to stop boats from leaving in the first place, but if they're in the open sea, these deals no longer apply.
So sending migrants back to France at sea is simply not a concept that would ever be allowed under international law.
Whether it is a border patrol vessel, a ferry or a cruise ship, a rescue operation then has to be coordinated and launched. Oftentimes, maritime authorities will take over and take the lead in saving these lives at sea.
Claiming asylum in the UK:
When migrants and refugees reach the United Kingdom with success in one form or another, they are typically picked up by local authorities or border control officials to be processed, which includes health checks, identity checks, age checks and other formalities.
It makes no difference whether they were intercepted at sea or had managed to make their way to Britain and got picked up on the pebbly coastline of County Kent.
They're all allowed to lodge an asylum claim under international law. The UN's 1951 Refugee Convention and the 1967 Protocol protect people fleeing from war and persecution throughout the world, wherever they may land. Every person in the world has a right to claim asylum.
An asylum application is then assessed on its merit, usually in the course of several months. During this period, there can be various discoveries that determine how the case is to be handled.
In straightforward cases, where a person has a legitimate claim to asylum, it is checked whether they have claimed asylum anywhere else before. If not, the UK would in this scenario be in charge of granting them asylum.
In other cases, it may turn out that a person came from a safe country and is not entitled to asylum, as they are not feeling persecution. In this case, they would eventually be sent back home and their claim would be treated as having been fraudulent.
There are also cases where people come from safe countries but are granted asylum anyway on account of their personal circumstances — for example, LGBTQ+ individuals from certain nations, which are not in an active state of war or conflict but are known for abusing the human rights of such minorities.
During the process of determining a claim, the UK is required to provide housing and food for these individuals, as mandated by the UN Refugee Convention. In other words, this means that slogans demanding to "send them back home" are null and void in the face of the law.
Dublin rules under Brexit:
Currently, the most complicated cases in the UK context might be those who successfully manage to assert their right to asylum but are later found out to have already lodged a claim in another country earlier.
For example, a migrant who reaches the UK by boat may already have lodged an asylum case in France, if they spent any considerable length of time there.
Before Brexit, the UK would have been able to send the person back to the country where they had first claimed asylum -- in this example, that would be France. This was due to a mechanism in EU law called the Dublin Regulation, which stipulates that the first EU country of entry should be the country where the asylum claim is processed.
However, Britain is no longer in the EU, and can therefore not make use of this mechanism. Prime Minister Keir Starmer is trying to reenact certain areas of cooperation, which Britain used to enjoy while it still was a member of the bloc, and a mechanism similar to the Dublin Regulation is one of them.
Therefore, there are cases where Britain -- out of its own democratic volition -- has created a situation with Brexit whereby it has to accept certain refugees whom prior to Brexit it would have been able to send to another country for processing.
No solution in sight:
While stressing that he also wants to stop boat arrivals, Starmer is yet to come up with a comprehensive plan that would address all these various methods of arrival and the laws that do or do not govern how people in migration have to be processed in the UK.
In an interview with the BBC, Starmer stressed that he was "absolutely determined" to stop the smuggling gangs who facilitate the Channel crossings, which since the beginning of his premiership in July have meant that over 10,000 people have reached British shores using irregular means, in addition to 45 deaths.
However, the prime minister stressed that he was "not going to put an arbitrary date" on stopping the small boat crossings, nor did he share how he was going to achieve this in any way that would stop shy of changing international laws and agreements.
Take care!
Prof. Carl Boniface
Source: Infomigrants.net
P.S. The term "illegal asylum seeker" is a misnomer, as seeking asylum is a legal right. Anyone can apply for asylum in a country that has signed the 1951 Refugee Convention.
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