Faculty of law blogs / UNIVERSITY OF OXFORD

Criminalisation and Humanitarian Border Policing in the Channel



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8 Minutes

Guest post by Thom Tyerman, Travis Van Isacker, Philippa Metcalfe and Francesca Parkes. This post was written in conjunction with activist networks working against the UK border regime in Northwest France, including Watch the Channel and Calais Migrant Solidarity.

Migrants’ dinghies in Dover harbour


In March 2021, the UK Home Office published a white paper entitled The New Plan for Immigration (NPI) identifying asylum seeking as a primary source of ‘illegal immigration’. The NPI and the Nationality and Borders Bill it informs propose a dramatic overhaul of the asylum system, limiting full refugee status to those who are cherry-picked and brought to the UK via a restrictive ‘resettlement scheme’ while introducing a temporary status with less rights for people who apply for asylum after having travelled to the UK outside these routes.

At the same time, the UK will now render ‘inadmissible’, asylum claims made by someone who travelled through a ‘safe third country’ (European countries in particular) and seek to quickly deport them either to that ‘safe third country’, one they have a ‘connection’ to, or any other country that will accept them. However, at the time of writing, the government has still not been able to negotiate any returns agreements with other countries, meaning that, for the moment, ‘inadmissible asylum seekers’ are not facing deportation. Alongside this, the bill proposes to criminalise asylum seekers by introducing the new offence of simply ‘arriving’ in the UK without permission in addition to the existing offence of ‘entering’ without permission (i.e. circumventing immigration controls). The offence of ‘facilitation’ of arrival/entry is to be expanded to include people who do not act ‘for gain’ (i.e. who do not benefit materially or financially) and will carry a possible life sentence, although exemptions remain for organisations assisting asylum-seekers without charge.

The Nationality and Borders Bill is presented as paving the way for the UK authorities to enact push-backs in the Channel and detain people off-shore or overseas while their asylum claims are processed. The wide-ranging criminalisation proposed here seeks to supplement the hostile rhetoric and militarised security responses aimed at asylum seekers crossing the Channel in small boats which continue to dominate the media. Through this Bill, the British government hopes it can appear to fulfil its nationalist Brexit promise to ‘take back control’, even as it sells off rights, protections, and tax revenues in the pursuit of international corporate investment and new markets to form the basis of ‘global Britain’ (see for example, the Conservative Party’s plan to establish ‘freeports’ across the UK).

Without a hint of irony, the Home Office claims that its ‘New Plan’ champions the UK’s humanitarian commitment to refugees through expanding ‘legal routes’ for resettlement, dismantling exploitative smuggling networks, and discouraging dangerous ‘illegal’ crossings by blocking unauthorised arrivals from accessing refugee status and rights. However, these measures map directly onto the UK’s twin border security strategies of deterrence and externalisation. Humanitarianism and hostility go hand in hand in this ‘new system that is fair but firm’.

Civil society responses to the NPI – opposition or cooperation?

In the UK, civil society responses have widely decried the NPI as cruel, unworkable, and likely illegal under international law. Much of this opposition has coalesced around calls for the introduction of ‘safe and legal routes’ for asylum seekers: ‘pathways that enable people in need of international protection to travel to the UK in a safe and managed manner, normally through an application or approval process made overseas'. Seen as necessary to minimise the risk of exploitation, injury and death refugees currently endure to reach the UK (and Europe more generally), civil society proposals include introducing ‘humanitarian visas’, schemes for relocating unaccompanied children, and expanding international refugee resettlement and family reunion mechanisms. See for example policy proposals by the Joint Council for the Welfare of Immigrants, Safe Passage, Migrant Offshore Aid Station, and Choose Love among others.

‘Safe and legal routes’ are presented as ‘an alternative…better, kinder and more human response’ to the ‘hostile legislation’ of the UK government. But the practical suggestions they entail look remarkably similar to those proposed by the Home Office, and do little to challenge the discriminatory power of the UK state. Visas have always been a tool for controlling and limiting free movement for some while maintaining or facilitating it for others. Indeed, it is because of the restrictive EU/UK visa system that people are forced to take irregular routes via dangerous means to reach Europe in the first place. It is not clear how ‘humanitarian’ visas would operate any differently or have different results to the current visa system. Similarly, it is not clear in what way the expanded resettlement schemes envisaged by humanitarian civil society would differ in practice from those proposed by the UK government. Both would still involve the pre-emptive rejection of vast numbers of people by representatives of the British state, or by those to whom they outsource, forcing people to take to the ‘illegal’ and ‘dangerous’ routes that resettlement or humanitarian visas were supposed to help them avoid; thus, rendering these routes doubly illegitimate.

It is also important to remember how inept and inaccessible existing resettlement schemes can be. In 2013, the UNHCR abandoned hundreds of recognised refugees in the Tunisian Choucha camp without resettlement or support, forcing them to take alternative criminalised routes to travel to safety. The UNHCR also produces training and materials for European state border officials, providing advice on profiling arrivals and expediting the removal of people who fail to meet their criteria of protection. As such, it directly participates in the criminalisation of people on the move, including those who have strong 'humanitarian reasons' for their movement. Far from a neutral humanitarian actor, the UNHCR is central to the global ‘policing of populations and borders’.

Furthermore, it is not clear how either NGO or government proposals would resolve the well-documented difficulties LGBTI+ people face trying to prove their eligibility for resettlement or humanitarian visas while still at risk from persecution. The idea that people displaced by the chaos of war can or should engage with externally imposed application processes is disingenuous and requires us to ignore everything we know about the challenges they face. And the UK government’s stated policy of refusing the arrival of refugees on its territory, while demanding other states to take them in on their behalf, saliently demonstrates continued British colonial statecraft and its sense of exceptionalism that has been pervasive throughout history.

In all these ways, the safe and legal routes argued for by the UK civil society fail to challenge the legitimacy of the British state’s criminalisation of asylum seekers which underpins its expansion of the hostile environment policies against them. Indeed, their proposals would result in reproducing the simplified categories and understandings of people’s movements as authorised/unauthorised, legal/illegal, on which criminalisation is based and legitimated. Some organisations do acknowledge this dilemma, and explicitly state the government should ‘respect and protect the rights of all women, men and children seeking asylum to do so (including in the UK and including by such other routes as they may need to take)’. However, others have fully embraced this new agenda, adopting the role of border police by pre-emptively criminalising asylum seekers and their supporters.

Choose Love: Humanitarian border police in Calais

In late May 2021, NGOs working with refugees in Northern France received an email from their British funders, Choose Love, instructing them to cease the distribution of ‘safety at sea’ leaflets. They also instructed Maison Sesame, which provides accommodation for refugees in Northern France, not to host people who were trying to go to the UK. According to Choose Love, their lawyers advised them that the safety at sea leaflets potentially violated UK immigration law concerning facilitation of illegal migration. They therefore amended their contracts to deny funding to any organisation continuing to distribute them. Despite widespread criticism from the NGOs, who insist the information provided is intended to save lives, is freely available, and does not constitute criminal activity, the decree from London has had a chilling effect as many organisations fear being unable to continue their work without British funding.

Given the hostile agenda at the heart of the Nationality and Borders Bill, caution around criminalisation is understandable. But rather than minimising this chance, the actions of Choose Love risk making it even more likely. Without prompting or legal precedent, they took it upon themselves to define certain forms of support as (potentially) criminal, signalling their own distance from, and disapproval of, this work. This pre-emptive move in effect enforces the border on the UK’s behalf, criminalising particular routes to the UK and anyone even seen to be supporting those travelling on them. Indeed, it is potentially more effective that the British state itself could be, since it does not need to prove any legal basis for its actions. And just as with the UK’s criminalisation and securitisation policies generally, it increases the risks and dangers refugees face by denying them access to potentially life-saving information and resources.

A long history of criminalising migrants and their supporters in Northern France already exists. This has taken the form of national legislation, such Article L622-1 of the Code de l’entrée et du séjour des étrangers et du droit d’asile (CESEDA), aka the ‘délit de solidarité’, under which people were charged with facilitating illegal migration for providing basic humanitarian aid such as food, clothes, or shelter. Meanwhile, the Calais Mairie and Prefecture have repeatedly banned food distribution to migrants in the city over the years. Criminalisation has also been pursued in less official ways through the everyday policing of migrants and solidarity activists, who are subjected to repeated harassment and cycles of eviction aimed at making their presence in the region untenable. Many of these acts of criminalisation have been challenged in practice, in the courts, and in public debate, revealing them to be politically motivated rather than legally set in stone. While at some points humanitarians are the target of criminalisation, at others they have acted in concert with state authorities to implement these policies – for example, to construct and then evict the New Jungle of 2015-2016. Whether motivated by fear of being found on the wrong side of the law or not, by pre-emptively criminalising the distribution of ‘safety at sea’ information, Choose Love continues this trend of humanitarians doing the state’s political dirty work for them. Embodying the epitome of neo-liberal bordering, and in the name of its humanitarian mission, Choose Love has volunteered itself to act as the UK’s border police.

Resisting borders

As the history of this border shows us, however, criminalisation is a political process that is contestable both in practice and in the courts. But this requires moving beyond making policy suggestions seen as palatable within our present hostile political environment. If we are to resist the authoritarianism displayed in the Nationality and Borders Bill, we must confront the tendency of humanitarianism to contribute to border policing, whether purposefully, as in the case of Choose Love, or incidentally as in the arguments for ‘safe and legal routes’. We need to reject the basic contours of the debate around borders and migration as already compromised, rather than something to work within. We need to refuse the flawed belief that we can distinguish clearly between people’s reasons for moving, identifying some as ‘legitimate’ and others as ‘illegitimate’, as well as those simplistic understandings of ‘chosen’ and ‘forced mobility’, ‘agency’ and ‘victimhood’, on which the criminalisation of migration rests. We need to challenge the assumptions that migration must be ‘managed’, that western states or humanitarian actors have the right to do so, and that it is done to protect the lives of those being managed. We must relinquish the seductive fantasy that ‘we’ can and ought to have ‘control’ over ‘others’.

Instead, we need to understand these arguments as alibis for maintaining global inequalities of wealth, power, and privilege built on histories of colonial exploitation and violence. We need to draw the links between economic and political structures that require people to cross borders internationally in search of a liveable life, and at the same time trap people in precarious employment and poverty domestically. We need to show how the same strategies of scapegoating and criminalisation are used against migrants and welfare recipients alike to cover up the hollowing out of society by successive governments in the name of global capital and their personal profit. We need to denounce the role of borders in upholding these global injustices, for both citizens and non-citizens, and acknowledge the unauthorised movement of people across borders as a political act of resistance in its own right. Ultimately, we need to be bolder in our arguments for solidarity with people on the move and highlight the importance of border abolition to our vision of a fairer and freer society for all.

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How to cite this blog post (Harvard style) 

Tyerman, Τ., Van Isacker, Τ., Metcalfe, P and Parkes, F. (2021). Criminalisation and Humanitarian Border Policing in the Channel. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2021/10/criminalisation [date]

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