A five-fold increase of small boat crossings of the channel in January 2022 compared to the same period of 2021 is according to experts is mainly the result of push factors. The Home Office has been rebuked by the UK appeal court for erroneously describing asylum seekers “illegal”. The Nationality and Borders Bill currently under examination by lawmakers has faced forthright criticism for shutting down safe routes and exposing LGBTI+ asylum applicants to harm. The high court is examining the lawfulness of asylum seeker phone seizures and searches.

More than 1,300 people arrived in Britain via the Channel in January this year – a number five times that of January 2021. Info Migrants speculate that such journeys may be driven by false beliefs about the UK as “benefit heaven”, rumours surrounding Brexit and the discontinuation of Dublin returns, and attempts to reunite with families or broader diaspora communities. However, migration experts emphasise that, given almost all Channel arrivals seek asylum once in the UK, journeys are driven mainly by “push” factors (including war, persecution, widespread rights abuses, government oppression and environmental disasters, amongst others) rather than by “pull” factors. According to Dr Peter William Walsh from Oxford University’s Migration Observatory, research shows that those hoping to reach the UK have little or no knowledge of the country’s asylum or benefit system. Further, smugglers may try to trick people seeking safety by “up-selling” Britain, as it represents their most lucrative destination. The government says the controversial Nationality and Borders Bill, this week under scrutiny in the House of Lords, will curb crossings by criminalising “arrival” to the UK and punishing “illegal entry” with four years’ imprisonment and “assisting unlawful immigration” with life sentences. Yet, NGOs supporting asylum seekers say they are yet to see the “chilling” provisions of the Bill have any effect on arrivals. So far in 2022, at least three people have died in France’s Calais region whilst attempting to reach Britain.

In December, the UK Court of Appeal ruled that asylum seekers that are intercepted while crossing the Channel have not broken the law. The judgment stated: “…an asylum seeker who merely attempts to arrive at the frontiers of the UK in order to make a claim is not entering or attempting to enter the country unlawfully”. On this basis, Members of the Home Affairs Committee say the government’s tendency to brand asylum seekers “illegal” is “misleading” and “very troubling”. Under international refugee law, irregular entry of asylum seekers cannot be penalised if they present themselves promptly to the authorities and express a desire to seek asylum. Almost all Channel arrivals seek asylum, and the vast majority are granted protection. Nevertheless, the court said Border Force officers have adopted a “heresy about the law” to hand out “notices of liability to detention” to people arriving via boat, possibly in an attempt at pre-emptive implementation of the not-yet-binding Borders Bill.

Civil society organisations say the Borders Bill not only criminalises refugees but will also negatively impact safe passage and the rights of LGBTI+ individuals. The proposed legislation would limit access to family reunification for refugees reaching the UK via third countries, preventing up to 3,500 people a year from joining loved ones in Britain, according to estimates from ECRE member organisation the Refugee Council. Given the insufficiency of other regular routes, family reunion has historically been a life-saving legal pathway for people to find refuge and without it their only alternative is unscrupulous smugglers. Further, MP Olivia Blake argues that the bill will have pernicious effects for LGBTI+ asylum applicants. While homosexuality remains criminalised in roughly 70 countries, queer asylum seekers routinely see their claims rejected because of a widespread “culture of disbelief”. In the UK, 50 per cent of all rejections of queer applicants are successfully overturned on appeal. While previously applicants had to prove a “reasonable degree of likelihood” that they face persecution, the Borders Bill applies a “balance of probabilities” approach, establishing an “impossible standard of proof”. The difficultly of justifying claims, combined with shortened deadlines, means the odds are stacked against vulnerable LGBTI+ applicants.

On 1 February, the High Court heard the case of three asylum seekers who accuse the Home Office of illegally confiscating their phones and extracting personal data. The men said they were intimidated into providing their passwords and left without their phones – and thus denied contact with their families – for several months. After first denying any policy of phone seizures, the government said the practice was necessary to combat smuggling. The forthcoming ruling will provide insight into the lawfulness or otherwise of the “hundreds if not thousands” of phone seizures conducted since 2018.

For further information:

Photo: (CC) Jeff Djevdet, February 2016

This article appeared in the ECRE Weekly Bulletin. You can subscribe to the Weekly Bulletin here.