Migrants in the Channel? Let's start talking about solutions - These are some of mine!
The government's reaction to the flow of migrants across the Channel is woefully inadequate and it's time politicians started presenting solutions, not just grabbing or managing headlines.
The government’s reaction to the flow of migrants across the English Channel is woefully inadequate. There’s no coherent plan and I have it on good authority, from inside the keep, that Home Office responses are aimed more at heading off embarrassing headlines than addressing the issue itself.
In the absence of a government strategy, I am working on some recommendations them. I hope to present them through the media, and to send copies to the government, MPs and leading politicians, later this month. The Government will then have three options: take my strategy and implement it; take it, amend it, and then implement it; develop their own strategy. If they do none of these three things, the country will know that they’re not serious about securing our maritime borders and ending the flow of migrant dinghies.
As a heads up as to the sort of organisational and operational measures you can expect to see in the strategy, I’m publishing two posts. The first – this one – talks about a broad range of measures that need to be applied at the international and national levels, whereas the second – ‘A New Approach to Securing UK Waters and Maritime Borders’ – concerns itself, specifically, with the arrangements that must be put in place to monitor and police all movements across our maritime borders.
International, multilateral and bi-lateral
Immigration liaison officers
The Home Office has immigration liaison officers deployed to some embassies. Their task is limited to intelligence and information exchange, on immigration matters, with the host nation. This scheme should be expanded, with liaison officers embedded in partnered foreign law enforcement and security agencies and tasked with pro-active intelligence and operational up-stream disruption, with those partnered agencies, of facilitated (people smuggling) migration routes and the criminal organisations and people involved. Some such operations were conducted under PROJECT REFLEX between 2003 and 2006, until Tony Blair pulled the funding.
Foreign Office engagement
The FCDO, in support of the Home Office, must engage energetically with all nations along all people smuggling and migration routes to identify opportunities for up-stream disruption of the movement and smuggling networks. The Nationalities and Borders Bill provides some powers for the Home Office to apply visa restrictions to countries that do not cooperate in returns of their citizens from the UK, however, there is presently no coherent strategy to disrupt organised criminals who are encouraging and facilitating irregular migration to make money. This must change.
Foreign Aid
Foreign aid must, first and foremost, be focused on programmes addressing UK interests. These interests must include:
Reducing the incentives/motives for people to leave their country and region of origin (push factors)
Supporting country of origin and third safe country law enforcement and security agency capacities – build domestic capacity to disrupt people smuggling networks (part of the extraction plan in terms of UK direct disruption through Liaison officers).
Enhancing bilateral and multilateral diplomacy efforts specifically to support the above.
The Organisation for Security & Cooperation in Europe
In 2008, the UK, under the bizarre misapprehension that it is a primarily human rights and democratisation/election monitoring organisation, withdrew almost entirely from the 57 country inter-governmental ‘Organisation for Security & Cooperation in Europe’. However, the OSCE, with its specialist counter crime, counter terrorism and border security and management units, and its incredible diplomatic reach, has a unique ability to facilitate cooperation on cross border matters throughout the Northern Hemisphere, as well as to deliver technical and skills capacity building programmes. The UK should re-engage with the OSCE with the aim of leading an OSCE agenda, across its 57 participating States, to address irregular migration. Specifically, reducing people smuggling and enhancing border controls and cross border cooperation.
The International Maritime Organisation
A coastal State – in this case the UK – is permitted under the UN Convention on the Law of the Sea (UNCLOS), to “interfere” with a vessel deemed not to be in “innocent passage”. (Article 19.2) states that a vessel prjudices its right to innocemt passage if it is:
“loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State;”
Given that attempting to cross UK borders without correct documentation is, until shown to be otherwise, “contrary to… immigration… laws and regulations” and that a vessel engaged in such activity prejudices its rights of free passage, there may be scope for UK enforcement vessels to direct the violating vessel away from our waters. However, do so, in the case of a small, flimsy, overladen dinghy is an intrinsically dangerous operation, the Home Secretary’s policy of carrying out such operations is, frankly, bonkers.
That said, the government should engage with the International Maritime Organisation (the London based UN agency that has ‘guardianship’ of the UN Convention on the Law of the Seas, including ‘Safety of Life at Sea’ - SOLAS) to explore whether powers related to safety of lives at sea may be adjusted to help address the challenges of illegal crossings by sea.
French role in preventing ‘non-innocent passage’
The Home Office and FCDO should also engage with France to ascertain what they are doing to address their domestic legislation, powers and guidelines to allow intervention relating to ‘non-innocent passage’ within the French 12nm limit (movement with the intent to unlawfully enter another country is not be considered by the French as ‘innocent passage’ through their waters and they, as a coastal state have the power to intervene and, if necessary, to use force to prevent such passage. That includes intervening to prevent the departure of the vessel/dinghy. So, why don’t they exercise that power? Well, the UK Government needs to ask that question.
National
Legislative
The Nationalities & Borders Bill does, useful, contain provision to allow the UK to refuse asylum to claimants known to have arrived in UK waters from a ‘third safe country’. Presently however, amendments to the 1971 Immigration Bill appear to require the UK to continue to accept asylum claims lodged by individuals who arrive via 'third safe countries' in the EU, and, by implication to grant them entry in order to process those claims. In other words, the amendments to the Immigration Act 1971 may provide lawyers representing claimants a loophole. This matter requires closer examination.
National Strategy
The Government should appoint a National Borders Coordinator to commence work on a comprehensive, fully integrated, cross-government, multi-agency National Border Management Strategy for the UK. That strategy must create unity of effort and cohesion amongst all agencies working on our land, maritime and air borders at the international, national, regional and local levels. The Strategy would define the overarching national objectives, policy framework and agency missions within which the strategies and plans of individual agencies should be couched (presently there is no such meaningful overarching framework and the strategies of individual agencies are developed in isolation of each other). Points to note are:
My experience in helping numerous foreign governments to develop and implement such strategies has taught me that it is imperative the individual appointed is not from an border or policing agency and that they have no close affiliation with them, or any of the ministries involved. This is to avoid the real danger of institutional bias, conscious or otherwise, and any perception of such bias. Such a situation would be immensely harmful when it comes to strategy implementation.
For the same reasons, the National Borders Coordinator must report to the Cabinet or No.10, not a Secretary of State or departmental minister.
The National Borders Coordinator must be supported by a National Borders Working Group consisting of a member of the National Executive Board, or equivalent, of every government department and public agency involved in the National Strategy Working Group. This group will assist in the development of the strategy and will be responsible for overseeing its implementation.The Executive Board, or equivalent, of each department and agency, will provide input to the strategy development and will be responsible for overseeing the implementation of the strategy pithing their respective government departments and agencies.
Government departments/agencies involved should include, inter-alia:
The Home Office
UK Border Force
National Crime Agency
National Police Chiefs Council
The Security Service
UK Visas & Immigration
Government Communications HQ
The Foreign & Commonwealth Office
The Secret Intelligence Service
The Ministry of Defence
The Ministry of Justice
The Department of Health
The Department of the Environment, Farming & Rural Affairs
Her Majesty’s Customs & Revenue
The Civil Aviation Authority
The Marine Management Organisation
The Maritime & Coast Guard Agency
The National Borders Coordinator should also be supported by a secretariat consisting of staff seconded from each of these agencies.
Operational Scheme in Relation to the Safety and Return of Migrants
The problems
UK and French vessels are unable to force migrant boats at sea to stop or turn around if doing so would place lives at risk. Such actions are unlawful under the Safety of Lives at Sea' (SOLAS) protocol of the United Nations Convention of the Law of the Seas (UNCLOS) – with the possible exception of interfering with non-innocent passage (see above), which must be explored. However, any attempt to force overladen dinghy to turn around in the centre of the world's busiest waterway is intrinsically dangerous. Furthermore, it is not permitted by SOLAS to leave a vessel at risk. Unable to stop such a vessel (unless the IMO can give guidance on non-innocent passage), UK and French vessels are presently compelled to follow it to ensure no harm befalls it.
Again, UNCLOS does, in theory, permit the UK and France to prevent non-innocent passage through their waters, which it could be argued, an intent or attempt to enter the UK unlawfully, is. However, both French and UK authorities are still bound by SOLAS to avoid placing lives at risk.
Migrants are presently prepared to board UK Border Force vessels as they believe they will be conveyed safely to the UK mainland. But why do Border Force vessels not immediately return them to France? There are two main reasons:
Doing so would violate the new amendments to the Immigration Act 1971
Border Force vessels do not have the facilities or crew numbers to secure the migrants if they choose not to be compliant, particularly as they generally outnumber the crews. Compliance could not be guaranteed if the vessel attempted to return with the migrants to France.
Operational considerations and the reality of UNCLOS and SOLAS mean that no matter what other powers are in place, once at sea, British and UK authorities have little choice but to ensure that the migrants have safe passage to the UK. The most promising solution to this problem must lie in preventing that movement before it occurs, or reducing the motive of migrants to travel to the UK.
The solution
The solution requires the legislative changes to facilitate it.
The following graphic best describes the operation solution.
Note: I have to update this diagram, but you’ll get the idea. Also the UK has already left Dublin III.
This scheme is based upon exercising normal international practice, outside the EU, that the migrants will not be deemed to have entered the UK until they had transited immigration controls, hence the scheme calls for a holding and assessment or screening centre 'water side', ideally at Dover. A possible example of such a facility is New York’s floating prison. It has an outdoor exercise area, recreational, medical & welfare facilities. This is what should be moored at Dover, ‘water-side’ of immigration controls. All migrants crossing the Channel should be held here whilst their ‘claims’ are screened.
New York Prison Barge
If migrants can by-pass UK immigration controls, they will have entered UK territory and will have to be processed in the manner allowed for already in the amendments to the 1971 Immigration Act. In other words, we will not be able to return them to France until after a probably lengthy legal and administrative process. The migrants will quickly learn that this is the case, and will attempt to by-pass controls by landing covertly on British beaches. For the scheme to be effective, that cannot be permitted. To prevent it, suitable and reliable surveillance and interdiction capabilities are pre-requisites for success and must be put in place, and government must be robust enough to authorise and resource enforcement. More details on how this should be achieved and on other issues relating to the management of our maritime borders are contained in our paper, 'A New Approach to Safeguarding our Maritime Borders'.
Consolidation of Maritime Border Assets
Leaving aside military threats, at sea the UK faces three significant risks in relation to its maritime borders (12nm, 200nm and Continental Shelf). The risks are:
Migrant movement by sea (illegal and irregular, covert and overt arrivals)
Unlawful fishing of UK stocks
Two way smuggling of illicit, unlawful and illegal goods, dependent on the application of tariffs on goods
To address these risks action should be taken immediately to consolidate available maritime assets under one command. Such assets will have to be enhanced and should include inter-alia:
UK Border Forces vessels
HMCG Air Search & Rescue
HMCG Maritime Pollution Monitoring
Royal Navy Fisheries Protection Squadron
Fuller proposals will be contained in a future post.
Full 24/7 surveillance of our maritime borders should be established without delay, and a full scheme of operation allowing for the detection, identification, risk assessment and, if necessary, interdiction of any boat or vessel beyond 2 meters in length must be put in place.
Management of migrants by boat (as this is the challenge of immediate concern, I go into slightly more detail)
Whilst the Home Office has the habit of confusing legislation and plans - they love legislation, but, rather oddly, think legislation is a plan - the focus of effort must be on ensuring we are able to actually organised, structured and resourced to secure our borders.
The Home Office, is presently focussing on the Nationalities and Borders Bill, hoping that it will ease legal changes. They’ve also looked at the possibility of amending international law to obtain the legal power to turn migrant boats back at sea. But, notwithstanding the fact that such changes will take many years to achieve, powers already exist to do this. International law states that coastal states should permit innocent passage through its waters within the 12 nautical mile limit. However, attempting to unlawfully enter the territory of the UK is, by definition, not innocent and the movement may be interdicted and stopped. New powers, in this regard, are unnecessary.
Moreover, no matter what powers exist, the Home Secretary cannot expect to instruct the skippers of Border Force vessels operating in the middle of the busiest waterway in the world to contravene international law by endangering lives at sea. Forcing the reluctant occupants of an overladen dinghy to turn back to France, has to be an intrinsically risky operation. The compliance of the migrants cannot be assumed and, indeed, migrants have already been threatening to jump overboard rather than be forced back. Attempts to do as the Home Office suggests on the routes between Albania and Italy, and between Turkey and Greece, have proven extremely hazardous, regardless of the powers available. Frankly, the Home Secretary’s idea in this regard was ill-informed, ill-conceived and impractical. That, is a worrying indicator of the quality of policy making in the Home Office.
Asylum Claim Application Centre
At the level of the UK and France, the UK government should enter talks with the French government aimed at agreeing the establishment of a UK Asylum Claim Application Centre in France. Once such an agreement is reached:
The Asylum Claim Application Centre should be established as soon as possible.
Asylum rules (legislation too?) must be amended to facilitate implementation of the following:
The UK will not accept or process any asylum claims made in the UK, or on any form of UK registered or owned transport, if the applicant has travelled, or is in transit to the UK, from a European Union Member State.
Any individual in the European Union, wishing to claim asylum in the UK, regardless of their nationality, citizenship or country of origin, are to lodge their application at the UK Asylum Claim Application Centre.
Individuals lodging an asylum claim application and the UK Asylum Claim Application Centre will be denied entry to the UK until such time as their claim is processed, their claim accepted, and UK entry clearance issued. Any attempt to enter the UK prior to entry clearance being issued will result in the individual being denied entry, processed as per below and their claim being denied.
Persons granted asylum by the UK Asylum Claim Application Centre will be provided with the means to travel by the cheapest available safe route to the UK.
Such individuals will travel in a manner approved and managed by the UK Home Office
Such persons will be permitted transit through UK immigration controls on the UK border.
Such persons will be given access to refugee support as provided for under UK law.
Persons claiming asylum at the UK Asylum Claim Application Centre in France, will be required to provide proof as to why they are unable to claim asylum in France or why such a claim would not be appropriate e.g. reunification with family in the UK. Asylum claims that are not accompanied by such proof, will be registered but not be accepted or processed.
Applications received by the UK Asylum Claim Centre from individuals who have had a prior claim denied by the UK or any EU Member State, will be denied.
Any person not a citizen of a country with which the UK has a visa free arrangement and who travels to the UK from a European Member State without:
a valid visa,
entry clearance issued by the UK Home Office,
entry clearance granted, as a refugee, by the UK Asylum Claim Application Centre,
will be denied entry to the UK or may be detained for illegal entry in accordance with Nationalities and Borders Bill, and/or be returned directly to either the last country the individual departed from, or their country of citizenship.
The denial of Asylum Claims as described will be subject to an administrative appeals process, but not subject to judicial appeal.
Notes:
This scheme provides for a ‘Safe Route’ for asylum as requested by refugee and Human Rights campaigners.
These measures require:
Diplomatic engagement with the French to agree returns under this scheme.
Diplomatic engagement with the French to agree arrangements concerning the establishment of the UK Asylum Claim Application Centre.
Diplomatic engagement with all other EU Member States to agree returns under this scheme.
A review of present legislation, including the UK Nationality and Borders Bill, and amendment, as necessary, to ensure relevant legal facilitation.
The scheme would:
result asylum claims being denied to applicants already present in a third safe country and who are unable to provide proof as to why they cannot claim, or it would be inappropriate to claim asylum in that third safe country, and because it would facilitate the denial of entry to the UK without prior clearance and would also facilitate returns and,
in turn, lead to a reduction in the number of aspirant claimants.
That, again in turn, would reduce quantity of aspirant migration to northern France, and possibly to the EU, driven by expectation of a successful UK asylum claim,
resulting in the burden on France, experienced for example in the Calais camps, being reduced and, in the medium to long term. Any initial build-up of aspirant asylum claimants around the location of the UK Asylum Claim Application Centre could be also expected to reduce significantly before stabilising.
Whilst the scheme and process described would dramatically reduce the flow of cross Channel migrant boats, it cannot be guaranteed to end the flow altogether. Additionally, it is likely that implementation of the scheme would be preceded by an increase in the flow, as migrants seek to get to the UK before they can no longer do so. This initial increase and residual reduced flow must be managed.
-Linked to the passage of migrant boats now and in the future, no matter the number, if we are to avoid endangering lives at sea – an obvious aim – we have little choice but to ensure their safe passage. However, unlike the present practice, which is broadly and justifiably perceived as facilitating the migration flow, the following steps and changes should be made forthwith:
Legislative facility for the establishment of a ‘water-side’ assessment facility must be put in place. In much the same manner as an air traveller is deemed not to have entered the UK until they have transited immigration controls, and in the same way as at airports of entry, legislation should allow for the application of these same practices on our maritime borders.
When they arrive on UK shores, the occupants of the boats must not be permitted to transit UK immigration controls. Allowing them to do so permits them to enter the UK jurisdiction and the UK must accept responsibility for them.
Migrants who have been brought in by Border Force must be detained in a purpose-built facility, perhaps a larger vessel moored in the port, where they may be given a medical and health check, fed and accommodated; their safety and welfare provided for, and their immigration status assessed - prior to legally entering the UK.
Those migrants determined to have transited ‘Third Safe Countries’ i.e. those in which they should or could have applied for asylum, including France, before reaching the UK, should be denied entry to the UK on that basis and in accordance with permitted international practice. They should then be returned to France on a twice or thrice weekly shuttle that, unlike Border Force vessels, would have to be equipped with the facilities to ensure the safety of the migrants, crew and vessel itself. At no time should these migrants be permitted to transit UK immigration controls.
Additional measures the Secretary of State should take
Transparency in terms of policy, rather than operations, would be wise. To that end, I would advise The Secretary of State to:
Publicly acknowledge that the problem of people crossing the Channel in small boats is not only an immigration problem, but a potential public health concern and, because many of the people involved possess no documentation and reliable identification and background checks are often impossible, the issue is also a national security worry. In other words, we are determined for a range of reasons to address the problem, but are determined to do so in such a way as does not endanger the lives of migrants or UK Border Force personnel.
Explain to the British public why French and UK vessels are presently unable to turn the migrant boats back (safety at sea, legal powers etc) i.e. why it appears, wrongly, that the French are escorting migrant boast into UK waters and handing them over to UK Border Force..
Explain that in quieter waters elsewhere in the world, enforcement at sea may be an option, but that it is quite simply too dangerous, given the overladen nature of many of the migrant boats, the weather and water conditions and that these waters are some of the busiest in the world to instruct Border Force captains to force the matter.
State again that UK and French authorities are working together, and internationally, to explore whether changes to international law may be useful and possible.
Plan and announce the UK’s deployment of further UK intelligence liaison officers to assist with identifying and disrupting the people smuggling networks.
Despite the previous, misguided and unwise ‘policy’, explain that, in order to avoid endangering lives at sea and to allow asylum and health assessments to may be made (2-3 days), migrants will not be forcibly confronted at sea, but will be held in a secure and controlled ‘water-side’ facility for that purpose ‘at Dover.
Explain the concept of the Asylum Application Centre.
36. Explain that the shuttle will be a vessel that, unlike present Border Force vessels, able to provide a controlled environment that ensures the safety and welfare of its passengers and the crew. (explain that Border Force’s lack of suitably large vessels with the appropriate facilities is one of the reasons why confrontation at sea is dangerous for both the migrants and UK personnel)
37. Announce work on the formulation of a new UK National Border Strategy (as above) that will create cohesion and unity of effort behind one set of agreed goals for all agencies operating at our land (rail), maritime and air borders at the local, regional, national and international levels.