Wednesday, 12 August 2020

Crossing the Channel ~ some notes

"Since earliest times, humanity has been on the move. Some people move in search of new economic opportunities and horizons. Others move to escape armed conflict, poverty, food insecurity, persecution, terrorism, or human rights violations and abuses. Still others do so in response to the adverse effects of climate change, natural disasters (some of which may be linked to climate change), or other environmental factors. Many move, indeed, for a combination of these reasons" - New York Declaration for Refugees and Migrants.

Approximately 4000 individuals - mostly young males - have crossed the English Channel this year from France to the UK and, on 11 August, it was reported that the UK and France were working 'at pace' on a plan to halt such crossings - The Guardian 11 August 2020.

This is not a new issue. In November
2019, the House of Commons library observed that the number of migrants attempting to cross the channel in small boats had risen sharply in 2019 compared to 2018.

A joint action plan was agreed in January 2019 to specifically address the issue of small boat crossings. It included over £6 million investment in new security equipment, increased CCTV coverage of beaches and ports and a mutual commitment to conduct returns of migrants under international and domestic laws.

An ‘enhanced action plan’ was agreed on 15 October 2019. This aimed to halve the number of migrants attempting the crossing from 300 in August to 150 during October, and ultimately for ‘attempts to cross the Channel in small boat to be an infrequent phenomenon by Spring 2020.’

Clearly, this aim has not been achieved and the generally good weather during the Spring and early Summer of 2020 has assisted those making this hazardous journey. 

The English Channel:

The English Channel is the sea area with a western boundary from Isle Vierge to Lands Ends  and an eastern boundary from Leathercoat Point (England) to Walde Lighthouse (France). At its narrowest (the Straits of Dover or Pas de Calais) it is 18 nautical miles across (South Foreland to Cap Gris Nez). The Channel is the busiest shipping route in the world with around 500 vessels daily passing trhough the Straits.

Territorial Waters:

The United Nations Convention on the Law of the Sea provides that "Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention."

The UK defined its territorial sea by the Territorial Sea (Limits) Order 1989 as amended in 2013.

In the Straits of Dover region, the territorial waters of the UK and France have a common boundary. It follows that those crossing in this area do so in national waters - France and UK.

The Territorial Limits Order provides for the seaward limit of the territorial sea adjacent to the United Kingdom in the Straits of Dover. The limit in the Straits of Dover follows the line defined in an Agreement of 2nd November 1988 between the Government of the United Kingdom and the Government of the French Republic (Cm. 557) relating to the Delimitation of the Territorial Sea in the Straits of Dover.

Migrant:

Those crossing the Channel are referred to as "migrants" a term which is NOT defined in international law. As Oxford University's Migration Observatory states that there is no consensus on a single definition of a ‘migrant’.

The International Organization for Migration observes that "migrant" is "an umbrella term, not defined under international law, reflecting the common lay understanding of a person who moves away from his or her place of usual residence, whether within a country or across an international border, temporarily or permanently, and for a variety of reasons. The term includes a number of well-defined legal categories of people, such as migrant workers; persons whose particular types of movements are legally-defined, such as smuggled migrants; as well as those whose status or means of movement are not specifically defined under international law, such as international students.

Refugee:

The term "refugee" is defined in international law by the 1951 Refugee Convention - "someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion."

Migrant - Refugee is An important distinction:

Without question, all people who move between countries deserve full respect for their human rights and human dignity.  The European Convention on Human Rights requires signatory States to secure to everyone in their jurisdiction the rights and freedoms defined in the convention.

Refugees are a specifically defined and protected group in international law, because the situation in their country of origin makes it impossible for them to go home. Calling them by another name can put their lives and safety in jeopardy.

The important distinction between refugees and migrants was acknowledged by the UN General Assembly in the New York Declaration for Refugees and Migrants.

Asylum:

Asylum may be described as protection of an individual by one State against another State. States have a right to grant individuals asylum but it is not the right of an individual to have it granted.

The Universal Declaration of Human Rights recognises (article 14) the right “to seek and to enjoy in other countries asylum from persecution” but it does not provide a right of asylum.

Further, the Refugee Convention 1951  does not create a right of asylum for those seeking it.

Asylum must therefore be applied for. The UK process is set out by the Government. Further information is at:

Asylum in Europe United Kingdom Overview where the UK's complex legal provisions are listed together with links.  See also: The Refugee Council - The truth about asylum - and What does Asylum mean?

Is the UK the target destination for most?

The short answer is NO.

Eurostata data - published here - shows that with 142 400 applicants registered in 2019, Germany accounted for 23.3 % of all first-time asylum applicants in the EU-27. It was followed by France (119 900, or 19.6 %), Spain (115 200, or 18.8 %), ahead of Greece (74 900, or 12.2 %) and Italy (35 000, or 5.7 %).

UK date published on May 2020 is here.  In the year ending March 2020, the UK made 12,863 grants of asylum, up 40% compared with the previous year, with notable increases in grants to Iranian (up 62% to 2,653), Sudanese (up 87% to 1,657) and Eritrean (up 55% to 1,734) nationals

They have passed through several "safe" countries before reaching the UK:

This fact is often stated as an argument that the individuals should not be in the UK but ought to have claimed asylum in perhaps the first "safe" country they reached.

BUT the law does not require this even if it is what some would wish the law to be.

There is no obligation in the Refugee Convention to claim asylum in the first safe country. See the judgment of Simon Brown LJ in R v Uxbridge Magistrates Court ex parte Adimi [1999] EWHC Admin 765 stating that an element of choice is open to refugees as to where they may properly claim asylum.

Protection of refugees from prosecution was incorporated into UK law with section 31 of the Immigration and Asylum Act 1999. This provides a defence based on Article 31 against charges based on illegal entry and various documents offences.

What about the Dublin system?

In the 1990s the EU set about creating the Common European Asylum System in order to standardise asylum law and process across the whole of the EU and thereby reduce incentives for asylum seekers to travel within the EU. If they would be treated broadly the same everywhere, the reasoning went, they would not seek to move between EU countries.

One aspect of the system is referred to as the Dublin system or the Dublin III Regulation. (Dublin III dates from 2013 and replaced earlier versions).

This piece of EU law provides broadly that where an asylum seeker has been fingerprinted in an EU Member State but then moves on to another EU Member State, the asylum seeker can be sent back to the first country to have the asylum claim processed there.

For example, if an asylum seeker reaches Italy, is fingerprinted then travels to the UK and claims asylum, pretty much the first thing the Home Office will do is take fingerprints, check them against the central Eurodac fingerprint database and then if a match is found notify the other country and return to asylum seeker to Italy.

There are currently several hundred such “Dublin removals” every year from the United Kingdom. It is a system that the UK is very happy with, but Italy and Greece rather less so.

An inevitable consequence of the type of Brexit currently being pursued by the UK Government is that the UK will be leaving the Common European Asylum System and the Dublin Regulation will cease to apply. The UK says that it would like to negotiate a similar agreement from outside the UK but the prospects of the EU agreeing to that seem extremely slim.

Brexit therefore means it will no longer be possible for the UK to remove those asylum seekers who reach the UK via EU countries.

See House of Commons library - What is the Dublin III Regulation? Will it be affected by Brexit?

Alternative strategies?

Various alternative ways of handling the migration issue have been suggested - The Guardian 11 August and see Reliefweb- UK and French policies behind surge.

    It is plain that present-day policies are not working. Imagination and alternatives are required as soon as possible. The alternative will be to continuance of what Matthew Arnold called the "turbid ebb and flow of human misery" - Dover Beach.

   Further reading:

   EU Law Analysis - Professor Steve Peers - Updated Qs and As on legal issues of asylum
 and also see The UK in a Changing Europe - The Dublin Regulation: an overview.

12 August 2020.

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