The legal war of words over the Calais jungle

The migrants' camp across the Channel is working to everyone's advantage in the Brexit debate, and both parties are right - and wrong - in their arguments, writes Thom Brooks

Immigration remains the number one issue of concern for voters. Unsurprisingly, each side in the EU referendum debate has tried to use this to its advantage.

Brexit campaigners made their pitch first, claiming Britain could better safeguard its borders if we left the EU and left all such decisions to parliament alone.

Now the Remain camp has set out its case on immigration: Prime Minister David Cameron has claimed that Brexit would risk British border security, that it could open the door to the squalid, mud-filled Calais jungle camp moving across the English Channel to Kent. His argument, backed up by the French Economy Minister Emmanuel Macron, was that a change in Britain's relations with Europe would lead to changes in border security at the Eurotunnel. If Britain left the EU, the current agreement in Calais would have be redrawn.

Cameron's opponents - most of whom are either fellow Tories or UKIP members - cried foul and said this is another example of scaremongering in the government's 'project fear' strategy, trying to win the debate by frightening the public with false pretences.

But, the truth is, both sides
are right.

The Brexit camp argues that leaving the EU does not mean ending the current security arrangement at Calais. It is correct.

Border security for the Eurotunnel is governed by the Treaty of Le Touquet. This agreement puts Britain's border on the French side of the Eurotunnel - and the French border in Kent - for all individuals attempting to cross. The treaty permits passport checks in Calais prior to entering the Eurotunnel.

Its effect is the jungle camp. Anyone without a valid passport or visa for entry cannot get across to the UK, and so desperate migrants without such papers seeking a new life in Britain seek illegal entry to get through the Eurotunnel.

The Treaty of Le Touquet is a bilateral agreement between the UK and France. Its terms do not require EU membership and there is nothing in the agreement that would nullify it if there was a Brexit. Leave campaigners are correct in saying that if Britain was no longer part of the EU, this would not end the current border arrangement in force in France. The Calais jungle would remain in Calais.

But that's only half the story. While the agreement remains valid, there is every indication that the French have become deeply dissatisfied with how it has been managed. The several thousand people who want asylum in the UK wait in squalid camps on the French side of the border. Attempts to close these sites and process any asylum claims in France are usually met with resistance and anger.

It is, however, becoming clear that many in France view the jungle as more a British problem than their own, and there is a growing appetite to let the British government decide the fates of the migrants who want a new life in Britain - and pick up the tab for the costs of processing these claims.

Leaving the EU does not mean the current Le Touquet Treaty must end, but it is fairly certain the French would use such an event to revisit the agreement with a view towards forging a new deal. If record numbers of migrants continue to arrive in Europe and head to sites like Calais, domestic pressure in France may grow considerably for a change that brings an end to the jungle. 10 Downing Street is no doubt aware of this; it has provided financial support to France to cover the costs of closing down part of the camp and for processing asylum claims. This is calming the situation for now, but may be seen as little more than a sticking plaster should the camp continue to grow, and it would pile significant pressure on the French government to demand a renegotiation of the Eurotunnel arrangements.

So, while I doubt the jungle will move across the Eurotunnel to Kent, some change with border security is likely to appear on the horizon. Brexit does not require it, but seems certain to trigger it.

Calais might be the first issue of contention between the sides in the EU referendum debate. It will surely not be the last. Restricting rights to EU free movement and how current immigration rules affect families with a non-UK spouse or relative are also topics of serious debate that I will comment further on in Solicitors Journal in future columns.

But the disagreement over whether Brexit means an end to border security at Calais is but one sign that - not unlike many disputes - the facts are not always on one side alone. Just do not expect such nuances to get in the way of each side making its case for what is one of the biggest political decisions in our lifetimes.

Thom Brooks is professor of law and government at Durham University @thom_brooks thombrooks.info