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In its new illegal migration bill, the UK government has introduced some surprisingly radical proposals designed to discourage people from crossing the Channel in small boats to claim asylum.
Chiefly, it targets people who arrive in Britain through irregular routes, barring them from seeking asylum. And the UK does not offer many legal routes, with exceptions such as the schemes for Ukrainian and Afghan refugees.
Immigration lawyers are still picking over the details of the bill – initial debate is focused on whether it violates the UK’s legal obligations under international human rights or refugee law. While these questions are important, the practical and operational constraints are arguably the biggest obstacle to implementing it.
On paper, the bill effectively opts the UK out of the global asylum system as we know it, by preventing people from claiming asylum if they have arrived through irregular routes. That global system is, after all, based on the principle that people must usually reach a country’s territory in order to claim asylum. And this often involves irregular entry, because people fleeing threatening or otherwise dire circumstances may not have proper documents.
The UN has said the new UK bill represents a “clear breach” of the refugee convention, “which explicitly recognises that refugees may be compelled to enter a country of asylum irregularly”.
Instead of hearing asylum claims, the bill stipulates that people entering through irregular routes should be “detained and removed” from the UK. This applies regardless of nationality, including people from countries such as Afghanistan and Eritrea who would be very likely to be granted asylum in the UK under the current system.
Will people actually be removed?
But making something law does not mean it can be implemented. One of the biggest questions the bill raises is where people would be removed to.
If people do not come from countries deemed “safe” by the UK, they cannot be sent back to their country of origin without a decision on their asylum claim. If this is the case, the bill says they should be sent to “safe third countries”. There is currently just one third country, Rwanda, that is willing to take asylum seekers from the UK.
But even if the Rwanda scheme gets up and running, it is only expected to have capacity for around 200 people at first, though more could perhaps be processed per year. Without other safe third countries to remove people to, it is not obvious that many people could be removed in practice.
Past data illustrates this. Since January 1 2021, the UK government has already had a policy in place to remove asylum seekers it believes could have applied for asylum in another country. This would presumably include most people arriving by small boat from France. As of September 30 2022, the government had assessed around 18,000 people for removal – but had removed just 21.
Oddly, one strange quirk of the new bill is that it appears to make it harder, not easier, for the government to remove people who are not considered refugees. By preventing the government from considering asylum claims at all, it means that claims cannot be refused. People from “unsafe” countries who would have been refused cannot, under the new bill, be sent back to their countries of origin – instead, the UK will have to detain them (a costly endeavour) until a third country is willing to take them.
In 2022, the UK’s detention facilities were estimated to have a total capacity of no more than 2,500, while in the month of August last year, small boat arrivals exceeded 8,000. To accommodate more people, there would need to be a major increase in the use of detention. This is a reversal of previous government policy, which over the last ten years has aimed to minimise the use of immigration detention.
If people continue to arrive in the UK in substantial numbers, not being able to process and resolve their asylum claims could create considerable operational difficulties and financial costs – aside from the obvious human cost.
The deterrent may not work
At the heart of the proposal is a gamble: that the UK will not actually need to impose this penalty on many people, because the deterrent effect will be so strong.
While this may seem like a sort of policy catch-22 – “introduce a policy to deter arrivals so that you don’t need to implement the policy to deter arrivals” – it is the argument made by some government ministers.
It’s hard to predict how much of a deterrent effect the provisions in the bill will have. They are more extreme than polices adopted in most other high-income countries, which is where most of the evidence on policy deterrence comes from.
With that said, to date there is surprisingly little evidence that asylum deterrence policies put people off in large numbers, for the simple reason that asylum seekers often have little understanding of what policies they will face when they arrive. Indeed, this has been the finding of the Home Office’s own internal research, which was released to an NGO working on migration after a Freedom of Information request and shared with our team.
There’s certainly a risk, therefore, that the UK would end up detaining (or otherwise housing and supporting) quite large numbers of people for indefinite periods if this bill is enacted.
Peter William Walsh receives funding from Trust for London and Oak Foundation. He is Senior Researcher at The Migration Observatory, University of Oxford.
