Last year, the government vowed to “fix our broken asylum system” and “stop” small boats crossing the Channel. It promised this would happen if parliament passed new primary legislation, which it did last spring with the Nationality and Borders Act 2022.
These plans did not work. More migrants crossed in small boats than in any other time after the act was passed. Within only a few months, Home Secretary Suella Braverman – who had said the act would stop small boats – was now saying, after parliament passed the very laws she said would fix the system, that “we have failed to control our borders“.
The government’s solution is to repeat the same empty promise: the system is broken and they can only stop small boats with yet more new laws. Of course, the public has heard it all before and confidence in the government’s handling of immigration is at an all-time low. The home secretary even admits that its reputation is “on the line“.
New report: Sea Change on Border Control
In my new report Sea Change on Border Control, I examined why small boat crossings have been happening and what to do about them. I wanted to understand better why this issue started as it was strange that ministers lacked any explanation for why this has all come up on their watch.
The report’s main finding was that the primary factor behind small boat crossings is the UK’s lacking a returns agreement with the EU. This was a consequence of the UK’s Brexit deal. When the UK was in the EU, the UK was part of a returns agreement with the EU. This meant that anyone travelling to the UK from the EU without a right of entry could be sent back. When the UK left the EU, we could have remained part of this agreement – and other non-EU countries like Norway and Switzerland have a returns arrangement with the EU. But the Brexit deal did not include this.
So, what this meant is that anyone travelling across could be sent back before Brexit. We see irregular migration rates relatively low and stable. Not everyone was returned who was identified, but hundreds were every year. But after Brexit, anyone travelling across could not be easily sent back and they weren’t. Irregular migration has grown significantly each year to record highs with record low removals. Not only has the lack of a returns agreement been a factor in this issue, but it has helped fuel an increase in crossings.
My report is careful to blame only the criminal gangs for causing the problem and exploiting this change in the post-Brexit rules.
But the report also blames the government for failing to heed repeated warnings about the consequences of lacking a returns agreement. The first is a comment piece I wrote on 17 June 2016. I predicted “more, not fewer, people” would cross the Channel and lives would be put “on the line” making the journey. Sadly, my prediction has appeared to come true.
There were also repeated requests from the Labour front bench for the government to provide some assessment of the consequences for leaving the EU without a returns agreement. While the government had noted its desire to strike a deal in this area, the fact is that no deal was agreed – and, most notably, no assessment was ever made. This helps explain why they were caught completely off-guard. They had been warned, but did not see this coming.
The significance of these findings is that, if the government is to reduce the number of small boat crossings, it must acknowledge the primary factor behind them. But this requires admitting that their mistakes have had these consequences – and this may have political costs for the government. Until it does so, substantial reductions are unlikely.
Defenders of the government have been unable to say why no small boats were once recorded until 2018 or why they have taken off since 2020. The usual line now is that this is all a problem of the UK’s being a signatory to the European Convention on Human Rights. But this does not explain why problems arose only since Brexit nor why only the UK is so affected. Most notably, in November, the Immigration Minister noted the main legal hurdle was a UK case in the Upper Tribunal – not anything to do with EU or ECHR law – and that “other European countries are not bound by this“. This official statement undermines the arguments of its defenders.
Finally, the report is clear that it is the government’s Brexit deal, not Brexit itself, that is an issue. The UK can have the same returns agreement or some new bespoke arrangement as a non-EU country. It is not claimed that the UK should or must rejoin to put things right. But it does mean negotiating a new returns agreement to fix this omission in the original deal if there is to be a reduction in lives at risk in the Channel.
While the need for a returns arrangement is a primary factor, it is not the only factor. My report highlights problems with under-resourcing of staff, the lack of a fit for purpose digital system for decision-making, why the Rwanda policy lacks evidence as a deterrent, better coordinated action on criminal gangs and the need for an urgent independent investigation into unaccompanied child asylum seekers going missing from Home Office accommodation. So, it is recognised the issues are complex and a future strategy must address more than returns alone. But the point is without a returns arrangement, any progress will be hamstrung.
It’s a report that needed to be written. There is much said about small boats, but with little noted about its causes. It’s no wonder proposed solutions haven’t worked as a result. It is very much hoped that MPs and Peers of all parties note my report’s findings and more lives can be saved,
Thom Brooks is professor of law and government at Durham University’s law school.
