'It is this government, and not the migrants, which holds British law in contempt.'Wikimedia, Takver / CC BY-SA

The Conservative Party postures as the party of law and order. This is a staple of their playbook and a cause of their humiliation. Dominic Cummings’s unorthodox approach to optometry at Barnard Castle required police intervention, and the prorogation of parliament was, this time last year, declared unlawful by a unanimous decision of the Supreme Court. ‘Law and order’ is a compelling slogan, but it can be shrugged off in an instant at the government’s convenience.

It is under this guise of ‘law and order’ that the government has acted swiftly against migrants crossing the Channel. Much has already been said about the abhorrent cruelty of these measures. But moral judgements aside, the government’s actions are unlawful.

The impact of the pandemic, paired with improved weather, has prompted more people to risk the dangerous crossing from Calais to Dover. Just under 1500 people crossed the Channel in August, and a record-breaking 235 individuals made the journey on the 6th. The government has indiscriminately labelled all these people ‘illegal migrants’. In August of last year, during a similar surge in the number of migrants arriving at Dover, Boris Johnson declared “we will send you back”: “if you come illegally, you are an illegal migrant and, I’m afraid, the law will treat you as such”. This is ingenious sleight-of-hand. ‘Don’t blame me’, he seems to be saying; ‘blame the objective, impersonal law’.

“For all the government’s talk of upholding the law, they are happy to break it, and often do so with great success.”

However, as with prorogation, the law is not in fact on his side, and the government cannot be exonerated so easily from their responsibility to investigate asylum claims. The problems begin with the Geneva Convention, which states: “refugees should not be penalised for their illegal entry”: even if a migrant enters the country outside of the typical legal routes, they cannot be sent back without due process.

So the government points to the Dublin III regulation to justify turning migrants away from Dover. The regulation, in force until its expiration at the end of the Brexit transition period, states that migrants should be returned to the first EU country in which they sought asylum. But the burden of proof required to return a migrant is high. They must have been fingerprinted, claimed asylum, or spent a significant amount of time in the first EU country before arriving in the second. A border patrol boat could not possibly determine whether this is true for a migrant crossing the Channel.

If Dublin III does not suffice, then the government may also point to Article 31 of the UN Refugee Convention, arguing that a refugee’s residence in France prior to crossing the Channel undermines the conventions claim that refugees cannot be penalised for entering the country illegally if they are “coming directly from a territory where their life of freedom was threatened”. But, in 1999 Lord Justice Brown issued a ruling on how the term “coming directly” ought to be interpreted. He responded to the claim that “Article 31 allows the refugee no element of choice as to where he should claim asylum”, and concluded: “any merely short-term stopover en route to such intended sanctuary cannot forfeit the protection of the Article”. A migrant has every right to seek asylum in Britain after coming from France, unless they have previously been fingerprinted as an asylum seeker in another EU country.


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Home Secretary Priti Patel wants to make the route across the Channel “completely unviable”, and has called for Britain’s naval power to make it so. Pierre-Henry Dumont, the National Assembly member for Calais, asked: “What is the British navy going to do if it sees a small boat? Is it going to shoot the boat? Is it going to enter French waters?” While the Ministry of Defence denied that it would ever operate outside UK or international law, this begs the question of how exactly they plan to utilise the navy. All the water between Calais and Dover is either the territory of the UK or France. The UK cannot impinge upon French sovereignty by sending its navy into French waters; likewise the navy must, in line with UN law, ensure the safety of boats in British territory. How, then, can the navy make the Channel crossing “unviable”?

It can’t — at least, not within the confines of the law. For all the government’s talk of upholding the law, they are happy to break it, and often do so with great success. Just this past month, the Home Office tweeted a video stating: “small boat crossings are unnecessary, and we continue to return migrants with no right to be in the UK”. The video’s graphics were accompanied by the complaint: “activist lawyers delay and disrupt returns”. While the Home Office did remove the video and apologise, it offers a fascinating insight into the Conservative psyche. These “activist lawyers” are presumably just lawyers who do their jobs properly. Where the government has been “delayed and disrupted”, a judge must have determined that the deportation of an individual was legally dubious. As we observed in the prorogation debacle, the government is attacking a judiciary that gets in the way. It is this government, and not the migrants, which holds British law in contempt.

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