The increase in refugees crossing the Channel from France this year has attracted a lot of attention, much of it negative. Nigel Farage describes a few desperate refugees landing on Kent beaches as an ‘invasion’. Boris Johnson says it is ‘a very bad and stupid and dangerous and criminal thing to do’. Crossing the busiest shipping lane in the world in a small dingy may or may not be bad, stupid and dangerous, but is it really criminal? And is there anything the government can really do about the crossings?

First, some context. The numbers crossing the Channel in small boats have undoubtedly gone up, to over 4,500 already this year compared to just over 1,800 in the whole of 2019. This does not mean that the numbers of refugees coming to the UK has increased overall, though. The UK received around 35,000 asylum claims in the year ended March 2020 (compared to around 130,000 in France) and it seems likely that we are seeing a shift in the route by which refugees reach the UK rather than a change in overall numbers.

I use the word ‘refugee’ advisedly. Home Office statistics show that a record high of 54% of asylum applicants are being granted status after their initial application, a number that increases by 10-20 percentage points to as many as three quarters once appeals are also taken into account (Home Office Quarterly Immigration Statistics, published 21 May 2020). The main nationalities reported to be crossing the Channel are Iranians, Iraqis and Syrians, whose initial grant rates are 68%, 32% and 92% respectively. So it seems safe to assert that most of those crossing the Channel are refugees and will ultimately be recognised as such.

This is important, because it is not a criminal offence for a genuine refugee to break immigration laws. The UN Convention Relating to the Status of Refugees states at Article 31 that refugees should not be sanctioned for coming directly from a country where their life or freedom was threatened. In the landmark case of ex parte Adimi Lord Justice Simon Brown held that ‘directly’ should not be interpreted in literal geographical terms and that some element of choice was open to refugees as to where they might claim asylum. Section 31 of the Immigration and Asylum Act 1999 was enacted to introduce for genuine refugees a defence to various immigration offences. Case law like R v Asfaw in the House of Lords has more or less plugged remaining statutory gaps.

Some assert that those crossing from France are not really refugees because they could have claimed asylum in France, a safe country. This argument carries political punch but is not legally sound, nor does it really lead anywhere. There is no legal instrument which imposes an obligation on a refugee to claim asylum in a safe country through which they travel. The UN Convention Relating to the Status of Refugees defines a refugee by their relation to their country or origin, so that a person with a well founded fear of persecution in their country of origin is a refugee no matter what countries through which they passed. Section 8 of the Asylum (Treatment of Claimants etc) Act 2005 pushes asylum decision makers not to believe the narrative of a person claiming to be a refugee if they travelled through a safe country, but this is based on political wishful thinking rather than any analysis of how genuine refugees actually behave in real life. Again, it creates no obligation on a refugee as such, even if it does to some limited harm to their claim to refugee status.

That said, there is a mechanism within the EU which allocates responsibility to different member states to assess and decide asylum claims. The latest incarnation of this agreement is the Dublin III Regulation. The overall idea is that an asylum claim should be assessed in the country by which an asylum seekers enters the EU. This will, for reasons of geography, usually be the southern or eastern countries, such as Greece, Hungary, Italy and Malta. Arguably, these countries are least able to bear the short term burden of assessing asylum claims.

Each member state is supposed to find and fingerprint all potential asylum claimants arriving in their territory. The fingerprints are stored in the Eurodac database, the legal basis for which lies elsewhere in EU law. That member state is then supposed to process the asylum claim in question. If the asylum seeker moves on to another member state, the asylum seeker’s fingerprints can be checked against Eurodac. If a ‘hit’ is returned then a ‘take back’ request can be made, which is deemed to be automatically accepted if no response is received. The asylum seeker can then be sent back to the original member state for their asylum claim to be processed there. There are humanitarian exceptions built into the system, so that for example children with family members in another EU country can be transferred there to be cared for.

The Dublin system has certainly had its problems. Asylum seekers were very badly treated in Greece especially, to the point that the European Court of Human Rights held in 2010 that it would constitute inhuman and degrading treatment in breach of Article 3 to return an asylum seeker there. The sheer number of arrivals during the Syrian refugee crisis from 2014 onwards overwhelmed some EU border countries. Some member states, like Germany, announced that they would cease trying to return refugees elsewhere within the EU.

But the Dublin III Regulation in no way imposes a legal obligation on a refugee to make an asylum claim on their initial entry to the EU. Rather, EU member states have agreed amongst themselves that asylum seekers who do move on can be returned to their point or origin into the EU. The UK has of course left the EU but we remain part of the Dublin system until the end of 2020.

Even if there were a legal obligation on refugees to claim asylum in a safe country, it is hard to see how this advances matters. How would it be enforced? A refugee cannot be sent back to be persecuted in their country of origin as punishment for travelling through a safe country. Countries are not obliged to admit non-citizens, so how would a refugee be sent back from the UK to France or Greece, or Turkey, Libya or any other transit country? A legal agreement would be needed to do so. Like, for example, the Dublin mechanism, which the UK is planning to abandon at the end of 2020. There is no sign that the French or the EU as a whole have any interest in agreeing to a replacement agreement. It is simply is not a priority for them.

Brexit was sold as taking back control, particularly of our borders. The reality is that control of our borders requires cooperation and agreement with other countries.