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Asylum – a system crying out to be abused


THE illegal Channel crossings crisis is a pernicious recipe for unfairness. It is not surprising that nearly three-quarters of the public think the government is handling immigration badly. The failure to tackle the crossings has no doubt contributed to this perception. If the government wishes to reverse this trend, it needs to examine existing policy and come up with one that is fit for purpose. 

Though it seems neither parliament nor government recognise how unfair illegal Channel crossings are – five times higherso far this year than last (see Migration Watch’s Tracker) – the British public most certainly do, as do legal migrants and genuine refugees who see the combination of illegal entry and asylum abuse as a veritable web of unfairness.

Illegal entry is an injustice to all those patiently waiting in line, paying visa fees and observing the rules, to enter the country legally. Those who have entered lawfully have a right to expect other would-be migrants to abide by the laws of the land. Yet criminal traffickers and those paying them are being rewarded for breaking the very laws that are meant to manage and control entry fairly.

The reality is that we have an asylum system that is begging to be exploited and is, indeed, being abused on a huge and rising scale in a way that makes a mockery of our generosity. It wastes huge amounts of taxpayer money, destroys proper support for refugees and delays the claims of genuine claimants. This web of unfairness has to be unpicked by the government to solve a massive problem and, if necessary by working on the international stage, to halt the growing chaos. 

There are those who claim that asylum abuse is a figment of the imagination or ‘scaremongering’, despite the fact that, as this Migration Watch article makes clear, such abuse has been clearly identified by various independent organisations, judges and by the Home Office. 

It is also critical to nip in the bud the false assertion, promulgated by so-called justice warriors, that it is not illegal for migrants to enter the UK after crossing the Channel by small boats. 

Section 21(1)(a) of the Immigration Act 1971 states: ‘A person who is not a British citizen shall be guilty of an offence punishable on summary conviction with a fine . . . or with imprisonment for not more than six months, or with both . . . if contrary to this Act he knowingly enters the United Kingdom in breach of a deportation order or without leave.’ 

Section 24 sets out criminal sanctions for various types of unlawful behaviour, including illegal entry and overstaying. Section 24A makes seeking to obtain or obtaining leave to enter the UK by deception a criminal offence and S2(4) & (5) Asylum & Immigration Act 2004 makes entering the UK without a passport punishable with two years’ imprisonment.

There are some claims that those who seek asylum cannot be prosecuted in light of international law. No wonder that 98 per cent of those who crossed the Channel in 2020 so far have claimed asylum.

Section 31 of the Immigration and Asylum Act 1999 provides a defence against prosecution for certain offences committed prior to a grant of Refugee Status where the individual shows good cause for illegal entry or presence and bring him or herself to the attention of the authorities. This is based upon Article 31 of the 1951 Refugee Convention which states that refugees must come ‘directly’ from the territory where life or freedom was threatened or they may be liable for ‘penalties, on account of their illegal entry or presence’.

Some say that this defence tacitly encourages illegal entry. However, its impact has been exacerbated because of the body of case law which has helped to entrench the wide-ranging interpretation and impact of this defence (e.g. R v Asfaw, 2008). This must be addressed by thegovernment urgently to discourage illegal entry.

Given that those crossing the Channel have failed to seek asylum while spending time in other safe countries such as France, Spain or Italy, it is not unreasonable to conclude that the overriding motivation of those crossing is not to find safety, and that finding a back door to the UK is the primary driver.

New Home Office figures show that the large majority (81 per cent) of Channel migrants whose application for protection has been considered this year have no credible asylum claim in the UK. (See Question 29 here.) Yet the thousands of claims resulting from Channel crossings are crowding out those of genuine refugees, at huge cost to the taxpayer. A question worth asking is why are so many failed asylum claimants allowed to remain here? The answer is partly to be found in the ever-worsening state of enforcement. Returns of failed asylum seekers fell from around 15,000 in 2004 to just 4,000 in 2018. The 2019 figure is unclear because the government have made it much more difficult to verify the data on this.

We have to be more rigorous in applying the rules and laws in respect of those seeking asylum, in particular when it comes to those who fail to seek protection having passed through safe countries where they could have done so. 

The British people have a right to expect the asylum system that they fund to the tune of nearly £1billion per year (equivalent to the salaries of more than 30,000 police officers) is run efficiently, effectively and fairly, and that it is reserved for those who genuinely qualify for asylum. At the moment, it manifestly is not.

 Unless we can reduce the incentives to get into Britain illegally, these pressures on our borders will continue and probably increase.

It pains me to write this, but without the appropriate action from our government, the gross injustice that has become the hallmark of our asylum system will continue.

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Alp Mehmet
Alp Mehmet
Chairman of Migration Watch UK, former British diplomat.

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