The Dublin Regulation meant that anyone who sets foot in another EU country first can be returned to that country, this law no longer stands. Those who make the crossing know it will be difficult for Britain to return them to France
One of the biggest issues concerning the government is what to do about asylum seekers crossing the English Channel. About 8,460 made the crossing in 2020, but more than 23,000 have done so this year. The government has undoubtedly been taken by surprise and never saw a major spike in crossings coming.
These journeys are perilous. This Wednesday saw the deadliest tragedy yet as 27 drowned while making the crossing, including several children.
In response, former government ministers have accused the Home Secretary Priti Patel of “making it up as she goes along“ without any workable plan to reduce numbers nor any explanation for why crossings are at record levels on her watch.
So far, the ideas offered are nonsense, unlawful or both. One idea was to process all asylum seekers in Albania and at an estimated cost of £100k each. However, the Albanian ambassador said this would never happen as it’s “against international law”. Earlier, there had been suggestions that processing might happen elsewhere like Gibraltar or Rwanda, but the government said the reports were “groundless speculation”.
A second idea is to push refugees back, putting those in sinking rafts, including women and children, in grave danger. This has been branded “inhumane” and “unconscionable“ by Labour, but it is also a breach of the Merchant Shipping (Safety of Navigation) Regulations 2020 requiring the rescue of those in distress at sea.
For her part, Patel has spent most of her energy pointing fingers rather than solving problems. She has blamed open Schengen free borders, even though there have been post-Covid restrictions in place, and the French authorities for not doing more even though the UK was reportedly in arrears for financially supporting such efforts. No doubt more can and should be done on the French coast.
Yet, none of this explains why now – why are so many more crossing the English Channel since 2019 than ever before? This is not because the water is warmer, the waves less rough, there’s less Channel traffic or there are better rafts are being used. The one big thing that changed and may play a key role in explaining what is happening is the prime minister’s Brexit deal.
The relevant problem with Brexit is that in exiting the European Union the UK left what is arguably one of the most popular immigration policies among the British public, the Dublin III Regulation. This is an EU agreement among member states that if anyone sets foot in another EU country first then that person can be returned to that country. Under the Dublin Regulation, anyone found leaving French shores to come to England could be returned as per this agreement.
The issue now is that leaving the European Union has meant leaving the Dublin Regulation. The government was repeatedly asked by Labour during the Brexit negotiations about whether the Dublin Regulation membership would be part of any deal and, in essence, the government either forgot or did not take it seriously in leaving any mention of it out of the final deal – and with nothing to replace it.
This matters because this regulatory change will have been noticed. It means since the prime minister’s “oven ready deal” was accepted with no provision to deal with Dublin Regulation cases anyone travelling post-Brexit to Britain would arrive without the agreement they could be returned somewhere else in the EU. What is worse is the government has failed to create any such extradition treaties to address this matter and so faces extra hurdles in trying to enforce returns. This has contributed to the UK’s enforced returns being at record lows.
So, despite the tough-sounding rhetoric of processing individuals abroad, which other countries have rejected or pushed back on grounds that it is unlawful, the government has no grip on how this situation came into being in the first place.
Now those who make the crossing know it will be difficult to return them to France. Plus, with the Home Office taking longer and longer to process and assess applications, arrivals also know they will be unlikely to be going anywhere soon and able to reside in the UK for months or even years as applications are slowly considered.
It was a clear failure of Brexit talks to forget the inclusion of the Dublin Regulation or some other alternative in its place, just as it is a failure of caseload management that the Home Office is understaffed and under-resourced.
Frankly, if Patel is looking for someone to blame, she should look in the mirror – when standing next to the prime minister. Their short-sighted handling of negotiations have led us to where we are today. They did not “take back control” but gave it up in a rush. Until they learn lessons and correct their oversight, things may get much worse for them.
Thom Brooks is professor of law and government at Durham University