Tony Smith is a former Head of the UK Border Force and Director of Ports and Borders in both the UK and Canada. He is now Managing Director of Fortinus Global Ltd, and Chairman of the International Border Management and Technologies Association.
Rarely a day goes by without news of more migrants crossing the English Channel from France to claim asylum. What began as a trickle two years ago has now become a stream. Over 1800 came across in 2019. Over 160 arrived in a single day on 3rd June. At current rates, the 2020 figure will double last year’s total; it could even go higher still. Yet only around six per cent are returned to France.
Those who said that these waters were too difficult to navigate in unseaworthy vessels have been proved wrong. We have seen arrivals in all forms of makeshift craft, even inflatables and canoes. So how do we turn the tide, and stem these illegal flows?
This is a complex problem. There are significant challenges raised by international law including 1951 Refugee Convention, the UN Convention on the Law of the Sea (UNCLOS), the Convention for Safety of Life at Sea (COLAS), and the Convention on Maritime Search and Rescue (SAR).
Following media reports that French vessels were “escorting” migrant boats into British waters in May, Priti Patel announced that she would change international law to close the Channel loophole; but any change in international law needs international agreement.
Article 98 of UNCLOS encourages neighbouring states to establish regional arrangements for search and rescue at sea. Examples include joint patrol vessels, or the placement of officials from one jurisdiction on board the vessel of another.
So there is no reason in international law why the British and French governments could not introduce joint SAR patrols. They would have to meet the requirements on international law; but – crucially – refugees and asylum seekers can be taken to any place where there is no risk of their life or freedom being threatened in accordance with Article 33(1) of the Refugee Convention, on the principle of “non refoulement”.
So subject to mutual agreement, we could establish an integrated UK/French border patrol to rescue migrants at sea and bring them to a place of safety; and as both countries are signatories to the 1951 Convention, that could be to a port on either side, and not necessarily to the country whose vessel happens to rescue them.
Of course, this needs a political agreement with France. Some may say this is not achievable. Maybe not. But in 2002, the total UK asylum intake figure rose to over 100,000, with the vast majority arriving from France. To stem the flows, the UK and France agreed a bilateral Treaty (Le Touquet) in to establish “juxtaposed controls” whereby officers would conduct passport inspections prior to boarding ferries.
As these inspections were “extra territorial”, asylum claims were excluded. This led to a far harsher reduction of asylum claims from France than the numbers we see on the migrant boats today. In my experience, successive French governments have been prepared to work with UK border enforcement agencies to disrupt and deter irregular migration on the cross-channel routes. They don’t like human smugglers any more than we do. This suggests that there is scope for further bilateral agreement to counteract the maritime threat.
Although France is a “safe third country”, the current Dublin Convention trumps safe third country rules. To return as asylum seeker to another member state, the receiving state has to prove that an asylum claim had already been made in the other state.
Given that nearly all migrants are undocumented on arrival, this evidence is rarely available – and accounts to a great extent for the very low returns rate. As the UK departs the EU, it will no longer be party to the Dublin Convention. A new “safe third” agreement is needed.
There will always be migrants in France who want to come to the UK. Some may have legitimate reasons for doing so – for example, those with family connections here. To meet this demand, the UK could offer a legitimate migratory route to the UK for specific categories of persons via our offices in France; thereby reducing the incentive for illegitimate routes and simultaneously disrupting the smuggling supply chains.
I hope that the Government’s current strategy to encourage better enforcement in France pays off. It is certainly having an impact. But if we believe that this could escalate into a crisis like the one we saw back in 2002, we will need a more fundamental and radical approach to tackling the problem.
That means reaching a new international agreement France on joint patrols, search and rescue, and safe returns whilst simultaneously exploring alternative legitimate offshore processing routes for those with a genuine case to enter. Then – and only then – will we finally be able to turn the tide on migrant boats and defeat the maritime threat to our borders.
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