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Lexis+ AI
Thom Brooks

Professor of Law and Government, Durham Law School

Quotation Marks
“A second part of this response is to enact a policy of deterring individuals from claiming asylum through irregular routes.”

Asylum seekers and the UK's deterrence strategy

Practice Notes
Asylum seekers and the UK's deterrence strategy


The UK government should reform its policies of deterrence towards asylum seekers, says Thom Brooks

Small boat crossings of asylum seekers across the English Channel is a major headache for the government – and reveals a deeper problem it may soon have to acknowledge. 

Until 2018, there were no small boat crossings recorded in the UK. Last year, there were 45,766 making the dangerous journey. This is not something the government can blame Labour for. After all, the Conservatives have been in power for nearly a decade before the first small boat came across. 

The government gets right that illegal human trafficking gangs are the main cause of the crossings. But efforts to bring numbers back down closer to zero have made little progress. 

One part of the UK’s response is to work more closely with the French to disrupt criminal gangs and prevent journeys from setting off. There is nothing new in joint operations in and around the Channel. The recent Joint Statement of 14 November 2022 was the third such arrangement in four years. Each has a price tag and the current deal sees the UK pay £8m. This agreement is said to have helped prevent over 31,000 crossings, but most of these were stopped before the deal was agreed. None of this explains why so many are happening with big leaps each year. 

A second part of this response is to enact a policy of deterring individuals from claiming asylum through irregular routes. The government is quick to claim there are “safe and legal routes” to claiming asylum in Britain which are welcomed, but irregular migration is not. Critics are equally quick to point out that these safe routes are for only a few nationalities, such as Afghans and Ukrainians and leave out many who have gone on to successfully claim asylum in Britain that we should not turn away.  


The government’s idea is that deterring irregular migration will help break up the so-called business model for criminal gangs. The logic goes that if individuals knew they would be processed for asylum somewhere outside the UK after endangering their lives in small boats they will refrain from making the journey and crossings will wither on the vine. 

This deterrent is built around shipping newly arrived irregular migrants to Rwanda to have their claims heard there. It is inspired by Australia’s agreement with the Micronesia island republic of Nauru to accommodate irregular migrants. The deal came at a high financial price: 107 people were accommodated at a cost of A$4m annually for each individual. It did not take the Australian government long to change its mind. No one has been sent to Nauru since 2014 and more leave year on year. 

It remains to be seen whether the use of Rwanda will be a success, but the evidence thus far is not positive. First, the largest numbers of small boat crossings ever recorded happened in the months after the UK announced its plans. Secondly, not a single individual has been removed to Rwanda with none likely soon as the policy remains in the courts. While the High Court found the policy to be lawful in principle, it highlighted serious problems in practical application and required new assessments for all earmarked for removal.  

An appeal has been granted and the case on-going, but already the UK has paid Rwanda £140m. These costs will go up if relocations begin. The government has said it will fund the processing costs for each removed individual as well as the cost of caseworkers, legal advice, translators, accommodation, food, healthcare and “a comprehensive integration package” to assist those granted asylum to begin their new life in Rwanda. 

The high costs are repeatedly justified on the back of the policy’s deterrent effect but there remains no evidence of this. Nor is it likely any will be shown soon. Last August, Baroness Williams of Trafford, on behalf of the government, said that the Home Office “does not make forecasts of numbers crossing, given the multiplicity of variables involved.” It should go without saying that if no forecast can be made, there appears no way to assess whether the policy has made any impact if it went ahead. 

A third part of the government’s response is to target Albanians on small boats for swift removal. This seems driven by the fact Albanians were the largest nationality of those making the crossing in 2022. The problem is that the largest nationalities change annually. Focussing on one to the exclusion of others will keep the government on the backfoot making too little progress reducing numbers further. Nor has it helped relations with Albania which has nosedived.  

Thus far, none of these plans have worked to bring numbers down. This is because it overlooks a primary factor exploited by gangs – and which highlights a key weakness in the government’s “oven ready” Brexit deal – identified in my new report Sea Change on Border Control.  

Parliament passed the European Union (Withdrawal) Act in June 2018. 80 per cent of the first small boat crossings happening in the months following that year. Irregular migration without small boats fell from about 13,000 in 2018 to 8,000 in 2020 and in 2021.

At the same time, the total numbers crossing rose from over 13,000 in 2018 to nearly 32,000 in 2021. While some migrants may have shifted from one form of irregular migration to another, what is striking is the huge overall rises we see from 2020 onward after the UK left the EU in January 2020.  

Dublin regulation

To understand why small boat crossings started, we must begin with the Brexit deal. Prior to leaving the EU, the UK was a part of the returns arrangement called the Dublin III Regulation. This is generally an EU-wide agreement that migrants seeking asylum in the EU can be transferred to the first safe country within the EU that they entered. If someone arrived in Greece first and sought asylum in the UK, they would be eligible to return to Greece. The idea was this would prevent ‘asylum shopping’ whereby someone might make multiple applications at once. 

When the UK was part of the Dublin system, arrivals – and transfers out – were in the low thousands. If someone was discovered migrating irregularly, they could be detained and removed. The Home Office refers to them as ‘clandestines’ as they generally travelled one or a few at a time aiming to avoid detection. 

After Brexit, the UK left this system and lacked a returns arrangement. This meant that anyone identified could not be easily returned. Removals fell to record lows while small boat crossings rose – and no longer with the need to hide without a deal in place. 

I first predicted this problem in June 2016 shortly before the referendum vote. It seemed likely that no returns policy would fuel irregular migration and put lives at risk making the journey. Unfortunately, this has turned out to be correct. 

While advising Labour’s front bench, I had several put in parliamentary questions about what assessment, if any, had been made for leaving the EU without a returns policy. The government admitted it had “not modelled the likely impact” and, predictably, it has been caught by surprise. 

Part of the surprise seems to be that Home Office officials did not think the clandestine arrivals could grow. In the Dublin system whereby, someone could be returned and many were in their thousands annually, it all seemed manageable. They never seemed to reflect on what effect there would be if removals came to a halt. My report finds that gangs have exploited this change taking advantage of the UK’s difficulty in returning new arrivals. 

Fixing this issue does not mean that Brexit must be reversed. Several non-EU countries have returns policies with the EU, including Norway and Switzerland who are still a part of the Dublin system. However, moving forward does require acknowledging that the “oven ready” deal was only half-baked ignoring repeated warnings that having no returns policy could lead to problems. After promising Brexit meant taking back control of our borders, the lack of a returns policy has meant a greater lack of control over irregular migration and, perhaps ironically, the government’s most effective deterrent. 

Small boat crossings put lives at risk, enrich criminal gangs and add pressure on the asylum system to manage new casework. This is in no one’s interest. If the government wants to do something substantive to reduce their numbers, they should seriously engage in agreeing a new returns arrangement with the EU which we had when recorded numbers were zero. Anything less will not go far enough and, as the agreement on the Northern Ireland Protocol has shown, a deal can – and should – be done. 

Thom Brooks is Professor of Law and Government at Durham Law School 


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