HOME Office figures suggest that, between January 1, 2019 and October 1, 2020, fewer than 250 migrants who crossed the Channel were returned to mainland Europe. This is 2.5 per cent of just under 10,000 or so people who were reported illegally crossing the Channel in that period (see our Tracker) – about one in every 40 arrivals (see our summary). It has also been reported that there have not been any flights so far this year to remove illegal immigrants who arrived via this unauthorised and deadly route.
Meanwhile, enforced returns of those with no right to be here have fallen precipitately, from 15,000 in 2012 to 5,000 in 2020, and returns of foreign criminals fell from 6,100 in 2016 to 3,400 in the year ending September 2020 (see latest statistics).
The government blames Covid, noting that the drops coincided with the imposition of travel restrictions as part of the response to the pandemic. Yet this ignores the fact that removals have been dropping for a number of years (as the Home Office graph below shows).
Figure 1: Returns from the UK, by type of return, year ending September 2011 to year ending September 2020
What other reasons might there be for so few removals? The answer seems to fall under three sub-headings: administrative, legal and political.
a) Cumbersome Dublin Convention – Prior to the start of 2021, the most significant mechanism for removing those arriving in small boats was the Dublin 3 Convention which did provide a mechanism by which we could return some people to EU states, because it contained an established principle that those in need of protection should claim asylum in the first safe country they get to. Unfortunately, between 2016-20, the number of successful applications by the UK for removals under these rules plummeted and during 2019 only 21 people were removed to France under the Dublin Convention.
This may partly be due to political factors but may also be due to the range of loopholes and criteria that were built into the Dublin rules. Indeed, in light of its cumbersome nature, Vincent Cochetel, UNHCR Special Envoy for the Central Mediterranean Situation said in evidence to the Home Affairs Select Committee last year that the Dublin scheme ‘never really worked’ (see Q271 of transcript of hearing on 30 Sept 2020), a sentiment echoed by senior Home Office personnel.
The details within Dublin include a range of time limits and the fact that family links take precedence in the Convention over the rule that requires people to be sent back to the first country they arrived in.
There are also rules limiting detention (meaning that would-be returnees have often been able to disappear into the community).
Dublin sets out that where a person is detained and the formal request has been accepted by the receiving Member State, the transfer must take place within six weeks otherwise that person must be released from detention. It is not clear what has happened to the scale of returns since the Dublin Convention ceased to apply to the UK.
b) Other obstacles to removal to country of origin – Separately there are major obstacles to removing people to their country of origin. For example, removals to Libya, even of violent criminals, are extremely rare. A range of other obstacles to removals are linked to questions of documentation (the Channel threat commander revealed in evidence to a committee of MPs that most people in small boats destroy documentation before arrival). Linked to this there has been a failure by the HO to ensure that all of those illegally arriving across the Channel are fingerprinted before being released (see ICIBI report on small boat crossings, 2020).
c) Lack of returns agreements – This is a further factor. A Parliamentary Answer last year revealed that we have formal returns or readmission agreements with fewer than 30 per cent of all countries (53 of 190 or so). Admittedly China, Nigeria and Pakistan are some of the biggest offenders and are on the list, but notably absent are Iran, India, Bangladesh and Brazil.
d) Legal challenges – Too often planned return flights are cancelled due to late legal challenges, including spurious claims by those who are simply seeking to delay or obstruct their removal. This can be linked with the vagaries of the Dublin Convention above. According to Article 29(1) there is a six-month time limit for return of individuals under the ‘take back’ procedure.
For example, a Home Office flight bound for Spain carrying 23 illegal entrants was abandoned on August 26, 2020 due to last-minute legal challenges which led to removal being rescheduled. This can result in the timing out of a return.
Returns may also be obstructed by human rights claims including under the ECHR, e.g. Article 3 and Article 8. Some people claim that traffickers will threaten or harm them if they go back to France / Germany and some say camp or accommodation facilities in Greece or Spain are not up to standard. However, ECHR provisions have too often been the subject of abusive claims, including by those who pose a risk to the public.
f) Political will (or lack thereof) As Figure 1 above suggests, the decline in removals and enforcement more generally is not limited those illegally arriving via small boats across the Channel. It is also related to an apparently increasing reluctance by authorities to detain people (see the latest HO statisticson this). This despite the fact that, as the Home Office, themselves state, detention is a crucial part of immigration control.
With regard to Channel crossings, the independent Chief Inspector of Borders and Immigration also revealed that Home Office personnel believed more use should be made of detention for small boats migrants who were considered to be removable.
The clear inference was that the present overly-permissive approach was leading to too many absconders (see ICIBI report, p.79). The concerns of the Border personnel are justified, and the Home Office should take swift action to address them.
How much impact will a new rule change have?
Despite other areas where the government response has been sorely lacking, a new change to the immigration rules prevents migrants claiming asylum when picked up at sea.
Another change, which was placed before Parliament in December and which came into effect on January 1, means an inadmissibility decision can be taken on the basis of a person’s earlier presence in or connection to a safe third country (such as having previously spent time there), even if that particular country will not immediately agree to the person’s return (see the government’s explanatory memorandum of the rule change here).
If someone is considered inadmissible, the new provisions permit their removal to any safe country that will take them (not just the specific country or countries through which they travelled or have a connection) and their asylum claim will not be considered in the UK if that can happen.
Despite this toughening of the rules, illegal Channel arrivals are now about double what they were by this point in 2020 (see our Channel Tracking Station). It remains to be seen whether this tightening of the rules has had any real impact.