Sarah Chua explores the experience of migrants crossing the Channel, how their human rights have been impacted and discusses the solutions which could help those seeking asylum.
‘You won’t be saved […] I didn’t ask you to leave’[1].
These were among words recorded in emergency calls, said by the operator after the line was cut. Is that mockery we hear? Some underlying discrimination? Or the jaded response of emergency workers dealing with ever increasing Channel crossings? Or perhaps frustration at their own inability to do anything?
A year after the tragedy of 24 November 2021, in which 27 migrants[2] drowned in the English Channel and four others remain missing, the French newspaper Le Monde obtained extracts from the ongoing French investigation and published an investigative report critical of the response from French authorities.
The French government vowed that punishment would be meted out should the French responders be found wanting. While civil liability for negligence exists in English and French law, French law additionally imposes criminal liability for omissions[3].
Across the channel, the Marine Accident Investigation Branch published an interim report that confirmed that ‘some of the events’ indeed occurred within UK waters[4]. It would seem, then, that there may have been failings on both sides of the Channel.
Clearly, there is no one solution.
Both French and UK governments are adopting a firm stance based on deterrence, dissuasion, and destroying the ‘business model of people-smugglers’[5]. Suella Braverman is venturing to go further with a new law preventing illegal entrants from applying for asylum.
Meanwhile, on the ground, rescue workers in the Channel are clearly facing challenges in both logistics and coordination. Although it is laudable that British and French coastguards are seeking to improve cooperation, red tape can cause delays where minutes make a substantial difference for someone drowning or freezing to death.
Utopia 56, a French association which coordinates volunteer efforts especially in Calais, published a chronology of the events which took place in the early hours of 14 December 2022 when at least four perished[6]. It took about an hour to dispatch the first rescue boat after the distress call; this hour does not include the time required to locate the migrants and arrive at where the waves might have carried them.
While political deliberations are going on, organisations such as Utopia 56[7] and Amnesty International UK[8] are renewing their call for safe passage and legal routes for asylum seekers, which thus far has been limited to specific nationalities and circumstances. Additionally, the current routes exclude migrants who do not have a passport or equivalent travel papers, who are all the more vulnerable to propositions from smuggling gangs and human traffickers. The British Red Cross tweeted on 14 December:
‘Nobody puts their life at risk like this unless they feel they have no other option, and until we have more accessible safe routes for people to claim asylum, there is a danger we may see more such incidents.’
‘They feel they have no other option’
What complicates the migrant crisis is that there is no fixed migrant profile. The Home Office has noted an increase in Albanians in the recent months[9]. In addition, with Albania considered as a safe country, there does not appear prima facie to be grounds for an asylum claim. Why then would they attempt the perilous journey?
Based on data released by the Home Office, the BBC estimates around 45,000 people would have made the crossing on small boats last year up to early December[10]. According to The Guardian, at least five deaths were recorded last year[11]. Statistically, this puts the risk of death around 0.01% – certainly a reassuring promise that opportunistic smugglers could make in exchange for anything from £2,000 to £5,000 per person.
The Big Issue spoke to migrants in various parts of Calais for a feature[12]. They estimate that 70% of these migrants meet the criteria for asylum but have no legal alternatives to claim asylum. Among the remaining 30% would certainly be those who believe that the West is the paradise portrayed in the media. Forum shopping of a different kind also exists – a migrant found it too cold in Stockholm, saw too many homeless people in Paris and was persuaded that the UK would be a more welcoming place.
The volunteers working with them struggle with the idea of giving them a reality check. One of them shared that it would have been too late by the time the migrants arrive at Calais. When news of the Rwanda plan intended to deter migrants reached the camp, the volunteers saw suicides[13].
What are Human Rights?
Right to life. Right to liberty and security. Right to respect for private and family life. These are among the rights listed in the European Convention on Human Rights[14], a convention that the UK was among the first States to ratify. But is there a right to choose where to live?
It is hardly in question whether individuals fleeing peril in their own countries should be allowed to claim asylum, even if these countries are otherwise considered safe. The issue arises when refugees wish to choose where they seek asylum, whether because of perceived rates of success or because they believe it would be a better cultural fit.
Although there is no specific prohibition against choosing, section 16 of the Nationality and Borders Act 2022 provides for asylum claims to be declared inadmissible where the applicant has a ‘connection’ to a ‘safe third State’. The impact of this provision remains to be seen, but it would not implausible to declare a claim were inadmissible in the case of an illegal crossing from France. In addition, the Rwanda plan could see migrants hoping to begin life anew in the UK finding themselves in a different culture on a different continent.
The question of choice also applies to migrants who leave their own countries in hope of a better opportunities. History tells us of many migrations. Certainly, the majority of us have ancestors who lived in a different town, country or continent from us, and our ancestors surely had their share of perilous journeys in search of a better life. How different are opportunistic migrants from our grandparents and great-grandparents?
We are certainly appreciative that migrants on the verge of drowning in the Channel are being rescued, but which side of the Channel should they be brought to? Could migrants be threatened by traffickers if rescued by French authorities and brought back to France? How quickly should rescue teams intervene? How much manpower can we afford to actively patrol the Channel? What is a fair standard to impose on rescue workers? We can speak of human rights for refugees and migrants, and what of the rights of emergency workers operating in difficult conditions?
Who are they?
In a certain sense, the UK is a victim of its own success and migrants are drawn to the paradise they imagine Great Britain to be that they would not stop along the way – and certainly not opposite the white cliffs of Dover. Who are they? Albanians, Afghans, Iranians, Iraqis, Syrians, they are refugees, they are migrants. They are human.
Law is retrospective; it punishes wrongdoers or awards damages after the event. Law also looks to the future, whether to deter migrants or traffickers. It is a challenge to have adequate legislative safeguards to allay fears of a migrant influx, and yet to make allowances for the migrants without appropriate travel papers, all the while cracking down on modern slavery and human trafficking. But, above all, may the law be human. Just as the law protected us and our ancestors, may the law protect others to come.
References
[1] Julia Pascual, ‘L’enquête sur la mort de 27 migrants dans la Manche en 2021 accable les secours’ Le Monde (13 November 2022) < https://www.lemonde.fr/societe/article/2022/11/13/migrants-morts-en-traversant-la-manche-le-24-novembre-2021-l-enquete-accablante-pour-les-secours_6149691_3224.html > accessed 18 December 2022
[2] The term ‘migrant’ is used in a general sense to encompass all persons who seek to migrate. While there is a legal distinction between refugees and migrants, this is hardly helpful in our context – one can only tell apart the two when their asylum claims are considered.
[3] Article 223-6 of the French Penal Code defines the imprisonable offence of not rendering assistance to a person in danger.
[4] Marine Accident Investigation Branch, ‘Interim Report’ (Current Investigations, November 2022) < https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1119949/MigrantVessel-InterimReport.pdf > accessed 16 December 2022
[5] Home Office, ‘UK and France joint statement on small boat incident in the Channel’ (14 December 2022) < https://www.gov.uk/government/news/uk-and-france-joint-statement-on-small-boat-incident-in-the-channel > accessed 18 December 2022
[6] Utopia 56, ‘Au moins 4 personnes décédées dans la Manche – 1 an après, l’histoire se répète’ (16 December 2022) < https://utopia56.org/au-moins-4-personnes-decedees-dans-la-manche-1-an-apres-lhistoire-se-repete/ > accessed 16 December 2022
[7] Utopia 56, ‘Au moins 4 personnes décédées dans la Manche – 1 an après, l’histoire se répète’ (16 December 2022) < https://utopia56.org/au-moins-4-personnes-decedees-dans-la-manche-1-an-apres-lhistoire-se-repete/ > accessed 16 December 2022
[8] Amnesty International UK, ‘The Right to Asylum’ (Amnesty International UK, 20 April 2021) < https://www.amnesty.org.uk/right-asylum > accessed 18 December 2022
[9] Home office, ‘Irregular Migration to the UK, Year Ending September 2022’ (Official Statistics, 24 November 2022) < https://www.gov.uk/government/statistics/irregular-migration-to-the-uk-year-ending-september-2022/irregular-migration-to-the-uk-year-ending-september-2022 > accessed 18 December 2022
[10] BBC, ‘How many migrants cross the English Channel in small boats?’ (14 December 2022) < https://www.bbc.com/news/explainers-53734793 > accessed 18 December 2022
[11] The Guardian, ‘A timeline of migrant Channel crossing deaths since 2019’ (14 December 2022) < https://www.theguardian.com/uk-news/2022/dec/14/a-timeline-of-migrant-channel-crossing-deaths-since-2019 > accessed 18 December 2022
[12] Steven MacKenzie, ‘One Day in Calais’ The Big Issue (14 December 2022, no. 1539) 22-27
[13] This was before the High Court’s decision of 19 December 2022, ruling that the plan to send migrants to Rwanda did not contravene the UN Refugee Convention or other laws on human rights.
[14] It should also be noted that UN conventions apply to the treatment of refugees and the right to asylum.
Picture credit: A small boat carrying a group of migrants across the Channel in the direction of Dover, Kent. PA Media.
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