Channel Crossings: Acknowledging Complexity; Seeking Clarity

Updated: Oct 18, 2020

In the last week or so, the eyes of the UK government and media have been more firmly fixed on the situation in the channel. Specifically, their focus has been on the plight of those attempting to cross the channel in small boats from France. Many of these individuals are attempting to reach the UK to seek asylum. UK Home Secretary Priti Patel has reiterated her commitment to making the route ‘unviable’. She has also recently appointed a ‘Clandestine Channel Threat Commander’ and called upon the support of the Ministry of Defence to assist efforts in the Channel. Unsurprisingly, such action has provoked debate and discussion on the issues. Among the headlines are vastly varying viewpoints, opinions, and assertions. A perfect storm of confusion, perhaps. In this post, I underline the complexity of the situation which must be acknowledged, while stressing the importance of seeking clarity when engaging in discussion on the issue. There is no 'one size fits all' reason for making this perilous journey In seeking clarity on the situation, a good starting point may be to address the question of who is travelling across the Channel in small boats, and why? The headlines often refer to those making the journey as migrants, or illegal migrants. These categorisations are unhelpful in capturing the reality of the situation. While they are migrants, many are a particular kind of migrant, since among those attempting to reach the English coastline are many asylum seekers and refugees who have a legal right to international protection. Why make the perilous journey from France? The reasons differ, but research, which has been undertaken in the past, provides some insights. For some, it is about family links in the UK. For others the choice of applying for asylum in the UK has been made for language reasons; those who speak English may correctly assume that integration in the host country would be easier with knowledge of the language. For some, the destitute conditions within which they have found themselves in France  may compel them to aim anew to reach a place of safety and security elsewhere. Finally, it must also be acknowledged that some individuals may not have much control over their final destination, since they are often at the mercy of smugglers (to whom they have entrusted their journey). Already, the complexity of the picture is emerging. There is no ‘one size fits all’ reason for making this perilous journey.  

Further questions and points of confusion relate to the law. One significant question concerns whether refugees are obliged to seek asylum in the first safe country they arrive in. Much has been written on the legal issues surrounding the crossings, providing helpful clarity on this particular point. Professor Steve Peers has produced a helpful Q&A on the matter. By diving into the law, we see that the situation is complex. However, through the complexity, clarity is available.

The reality is:

  • There is no explicit obligation in the 1951 Refugee Convention for asylum seekers to seek asylum in the first safe country.

  • Within the Dublin Regulation, the first country an asylum seeker arrives in may be responsible for that claim (but other considerations such as family links do take priority).

  • In relation to France specifically, there is at least some evidence to suggest that conditions for asylum seekers do not always meet required human rights standards. For example, in July 2020, the European Court of Human Rights (ECtHR) ruled that France had breached its obligations under the European Convention on Human Rights (ECHR) in respect of treatment of asylum seekers who were living in destitute conditions.

As with most situations involving real people and real lives, it is nuanced and multi-faceted. Having established that many of those making the dangerous journey across the channel may in fact have a legal right to be granted refugee status or other forms of international protection in the UK, it is worth addressing a final question: why do such individuals resort to such dangerous journeys across the English Channel? In short, it might be argued, that for some, there is no other way. In November 2019, the UK’s House of Commons Foreign Affairs Select Committee released a report on irregular migration which noted: ‘We are concerned by the evidence we received about the dire conditions for migrants in northern France, and by the reports of an increase in those taking dangerous routes to reach the UK, including by crossing the Channel in small boats. Focusing on increasing border security without improving conditions in the region may have the counterproductive effect of forcing migrants to make desperate journeys across the Channel.’ [para 11] It should be clear by now that the situation is far from as simple as it is sometimes painted. As with most situations involving real people and real lives, it is nuanced and multi-faceted. On the face of it, it may appear that solutions are impossible to find, but we must remember that experts and NGOs have been advocating for increased safe and legal routes to asylum for some time now. It goes without saying that if safe routes were more accessible, dangerous journeys across the Channel would not be necessary. As UK ministers meet with their French counterparts this week, the discussion will continue. While the real human lives on these boats at present may be different to those who attempted the crossing last week, last month, or last year, the issues remain similar. So, too, does the international law on the issue. The UK is bound by international obligations from the 1951 Refugee Convention and 1967 Protocol, numerous international and regional human rights instruments, international and regional anti-trafficking instruments, and (for now) EU law. It is crucial that in the days and weeks to come, proper scrutiny continues, to ensure that the human lives to whom the obligations are owed, are protected in the manner which they should be. This post is part of a series focused on the issues relating to irregular migration, and the externalization and securitization of migration control. The series will include a webinar on this topic – stay tuned for more information soon. Gillian Kane is a PhD Researcher at the School of Law at Queen’s University Belfast. Her PhD research focuses on the role of international law in preventing and tackling human trafficking among refugees and asylum seekers.