To Stop the Boats, Criminalise the Channel Crossers
In this article, we look at the laws against illegal entry into the United Kingdom, and we find out why the Channel Crossers are not being prosecuted as illegal entrants into the UK. We conclude that they should be treated as criminals, and punished appropriately, and that this would stop the passage; but this will require leaving the UN Refugee Convention.
There is no widely accepted acronym for the unwieldy title, "UN Convention relating to the Status of Refugees". In this article, we shorten the name to "UN Refugee Convention". All further references to "the Convention" in this article refer to the UN Refugee Convention.
Here is the main law against illegal entry to the UK.
The Immigration Act 1971 (Sec 24) titled "Illegal entry and similar offences", states the criminal offences of entering the United Kingdom, and remaining, without permission:
For example, Paras B1 and C1 are pretty clear [the word "leave" means "permission"]:
(B1) A person who –
(a) requires leave to enter the United Kingdom under this Act, and
(b) knowingly enters the United Kingdom without such leave,
commits an offence.
(C1) A person who –
(a) has only a limited leave to enter or remain in the United Kingdom, and
(b) knowingly remains beyond the time limited by the leave,
commits an offence.
Para (F1) states the punishments:
(F1) A person who commits an offence under any of subsections (A1) to (E1) is liable –
(a) on summary conviction in England and Wales, to imprisonment for a term not exceeding the general limit in a magistrates' court or a fine (or both);
(b) on summary conviction in Scotland, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both);
(c) on summary conviction in Northern Ireland, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum (or both);
(d) on conviction on indictment –
(i) for an offence under subsection (A1), to imprisonment for a term not exceeding five years or a fine (or both);
(ii) for an offence under any of subsections (B1) to (E1), to imprisonment for a term not exceeding four years or a fine (or both).
And (G1)(1A) states:
(G1) (1A) A person commits an offence under subsection (C1) above on the day when he first knows that the time limited by his leave has expired and continues to commit it throughout any period during which he is in the United Kingdom thereafter;
Secondly, the Immigration and Asylum (Treatment of Claimants) Act 2004 (Sec 2) titled "Entering United Kingdom without passport, &c" considers the criminal offence of entering the UK without suitable documentation. It states in Para (1):
(1) A person commits an offence if at a leave or asylum interview he does not have with him an immigration document which –
(a) is in force, and
(b) satisfactorily establishes his identity and nationality or citizenship.
Para (7) considers the wilful destruction of identity documents, and finds that it is not a reasonable defence.
(7) For the purposes of subsections (4) to (6) –
(a) the fact that a document was deliberately destroyed or disposed of is not a reasonable excuse for not being in possession of it or for not providing it in accordance with subsection (3), unless it is shown that the destruction or disposal was –
(i) for a reasonable cause, or
(ii) beyond the control of the person charged with the offence, and
(b) in paragraph (a)(i) "reasonable cause" does not include the purpose of –
(i) delaying the handling or resolution of a claim or application or the taking of a decision,
(ii) increasing the chances of success of a claim or application, or
(iii) complying with instructions or advice given by a person who offers advice about, or facilitates, immigration into the United Kingdom, unless in the circumstances of the case it is unreasonable to expect non-compliance with the instructions or advice.
Furthermore
(9) A person guilty of an offence under this section shall be liable –
(a) on conviction on indictment, to imprisonment for a term not exceeding two years, to a fine or to both, or
(b) on summary conviction, to imprisonment for a term not exceeding the general limit in a magistrates' court, to a fine not exceeding the statutory maximum or to both.
WHY THESE LAWS are NOT APPLIED to CHANNEL CROSSERS
Therefore, given that there are laws on the Statute Book which prohibit, and punish, illegal entry and the wilful destruction of identity documents, the question is, "Why are we not applying those laws to the people coming across the Channel?"
The answer is simple.
Under the UN Refugee Convention, the people coming across the Channel – indeed, everyone who "claims refugee status" – cannot be considered to be a criminal. Under the UN Refugee Convention, they are not considered to be doing something "illegal".
This even includes those who come from a safe country, such as France.
Often, we tend to refer to them generally as "illegal" immigrants, but this is a confusing error.
They are actually "legal" immigrants under the UN Refugee Convention. That's why we are not treating them as illegals and convicting them for breaking our law of entry.
That's why UK law is, effectively, powerless in the face of them. We are required to consider them as a type of legal immigrant.
Consequently, we have no sanction against this sort of behaviour. We cannot punish it. We have to accept that, under the UN Refugee Convention, they have a legal right to cross the Channel in this way in order to "claim refugee status" in our country.
The only way we could stop them is if we were able to declare their behaviour in crossing the Channel to be illegal, and if we convicted and punished them appropriately.
However, none of that is allowed, so long as we are members of the UN Refugee Convention.
WHAT RIGHTS DO WE HAVE?
Now, under the Convention we do have a right to refuse to accept their claim for refugee status.
We can, and should, render all their claims "inadmissible". We do have that right!
We even have a right to render their claims "inadmissible" even if they are obviously genuinely persecuted in the true sense of the definition! (1)
Our only absolute duty under the UN Refugee Convention is that we do not directly return them to an unsafe country, or indirectly to a country from which they could be returned to an unsafe country, as per Art 33(1) of the UN Refugee Convention, which reads:
No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
This Art 33(1) is really quite constrictive. It does make it difficult to send people back without a long, tedious process of looking at their case. And even if it is found that the country is, for them, "safe", it can still be difficult!
AN EMPHASIS on DETERRENCE within the CONFINES of the CONVENTION
Given that it is difficult to remove them from the UK once they are here, some thoughtful people have made admirable attempts to try to figure out ways to make the consequences of a journey to the UK less appealing for the Channel Crossers – while still staying within the legal bounds of the Convention.
For example, sending them to Rwanda for processing (2) or to Ascension Island (3), and from there to other "safe" countries.
But really, a sovereign nation should not have to be constrained, or jump through hoops, on such an existential matter as control over its own borders!
WILL THESE WORKAROUNDS EVEN WORK?
Firstly, the proposal to send people to "a safe third country" like Rwanda, or Ascension Island, seems too much of a carry-on.
Can we really imagine this happening in a practical sense? Are we really going to be building a holding centre on Ascension Island? It's very difficult to imagine it happening in real life. Despite best intentions, it might all get tangled up, and flounder, within the "Human Rights" legal cobweb in which we are already entrapped. (4)
Secondly, it is particularly difficult to imagine this happening within the commonly understood "spirit" of the Convention.
The spirit of the Convention – which may or may not have been the original intention of its founders, but which has become the spirit of its current supporters and proponents – is a spirit which wants to give virtually every single asylum seeker permanent settlement in this country – this country, not "a safe third country".
Therefore, trying to argue the "safe third country" angle is to argue against the whole spirit – as it has come to be understood – of the Convention; which is basically to open up our borders to the rest of the world!
So, if we're going to go against the spirit of the Convention, how about going against it properly!
Much simpler just to cut to the chase.
How about leaving the entire thing completely!
How about finally acknowledging that those who cross the Channel are not refugees! And even if they were all genuine refugees, there is still no way that we can take them all in; and even if there were a way in which we could take them all in, we should not take them all in!
WE MUST LEAVE the UN REFUGEE CONVENTION, so we can CRIMINALISE THIS BEHAVIOUR
This is how we do it.
We leave the UN Refugee Convention. This means we are now free to criminalise the Channel Crossers; and to punish them appropriately.
We will then be free to do what we have done since the dawn of time, which is to patrol and police our own borders and to punish those who try to break in.
Now imagine that we left the UN Refugee Convention and started immediately jailing people coming across the Channel.
How long do you think that flow of people would last?
Yes, it's going to dry up pretty quickly.
SO HERE'S the TAKE-HOME
At present, we cannot Stop the Boats because, as members of the UN Refugee Convention, we are required to accept the Channel Crossing as a legal route into the UK. We are required to accept the Channel Crossers as perfectly within their legal rights to make this journey and to arrive on our shores in this manner!
Consequently, we cannot convict them under our laws against illegal entry.
The only way to stop them coming is to make this method of entry illegal, and to treat the people who use this method of entry as criminals deserving of punishment!
This means we must leave the UN Refugee Convention.
We must then declare the absolute, inviolable, unchallengeable, sacrosanct sovereignty of our borders, and declare that anyone attempting to enter the UK through the Channel will immediately be met with the full force of the law.
Anyone using the Channel will be considered to be using it as a surreptitious means of entry, will be breaking our laws, and will be committing an illegal act – regardless of what they claim – and anyone caught will be immediately processed as a criminal, fast-tracked through the courts, and sent to jail for a minimum of 5 years.
Until we criminalise the act of seeking entry into the UK via the English Channel – until we make it illegal in law (which will require leaving the UN Refugee Convention) – then we won't be able to do what needs to be done to stop it; which is imprisoning those we pull out of the Channel.
This will require a "paradigm shift" in our mentality. It will require us to stop seeing these people, as we are encouraged to see them now (by the massively-powerful Invasion Migration Industry), as "persecuted" or "vulnerable" or "asylum seekers" or "refugees" – and to start seeing and understanding them as criminals.
With that little change in the brain, we suddenly see things clearly, and the solution is obvious. Prison!
AND WE'VE ALREADY WRITTEN THE NEW LAW
Any person travelling from France to the United Kingdom, or from another European country, to the UK – by water, land, or air – without prior legal permission to enter, will never be considered by the UK to be a refugee. Rather they shall be deemed to have broken the UK's law of entry as per the Immigration Act 1971 (Sec 24); and they shall be fast-tracked for criminal prosecution and sentencing.
For the avoidance of doubt, this means that anyone found to have reached the UK from a European country without prior legal permission to enter, and whether that person is claiming refugee status or not, they shall never have any claim for asylum considered; they shall never be granted refugee status in the UK; they shall never be granted any other kind of permanent settlement status in the UK; and they shall be criminally prosecuted with a maximum of 5 years in prison, after which – or during which, if they indicate their intention – they will be removed to either the European country from whence they came; or to their own country of nationality; or to another country; a deportation process which shall occur; and may be voluntary, or shall be involuntary where necessary; notwithstanding any international conventions on the status of refugees to the contrary.
HOW IT WOULD WORK
The male Channel Crossers would be fast-tracked into a prison – purpose built if necessary. The Isle of Sheppey was suggested to us since it already has 3 prisons there. Women and children could be put up in secure "Detention Hotels", and any families could remain there until the man has served his sentence, or they could be fast-tracked home without him if they prefer.
While the man is serving his sentence; if at any point he wants to go back home, then he should be facilitated to leave forthwith, with funding provided by the State if necessary.
On completion of their sentence, they will be sent back to their own countries, or to another country which they may have personally arranged themselves. Whether these countries are regarded as "safe" or "unsafe" by the United Nations, will no longer be a consideration for us, because we will no longer be members of the UN Refugee Convention.
Relevant bio-metric details must be taken to ensure these people are never allowed access back into the UK.
It goes without saying that this prison regime will very quickly reduce the numbers coming via the Channel, or via any other means of illicit entry.
That's the way it should always have been. That's the way that many of us imagine it already is!
That's the way it should have been as soon as it was realised (in 2018) that the UN Refugee Convention had fatally undermined Britain's attempt to keep its borders secure.
FOOTNOTE 1: IT'S LONG PAST TIME to address our "UNDULY HEAVY BURDEN"
All this should have been addressed when the Channel Crossings began in earnest in 2018.
It was at that point that it became clear that the UK's membership of the UN Refugee Convention was no longer feasible – especially for us!
This is especially for us, because, as an Island nation (unlike land-locked countries) we can't stop them, or turn them back, at the physical border. That is, we can't build a wall, and we can't, reasonably, push their boats back out to sea again!
This means that the Channel has fatally compromised our ability to control the numbers entering this way, and being allowed to do so under the specific rules of the UN Refugee Convention.
We have an "unduly heavy burden" (phrase from the UN Refugee Convention, Preamble, Para 4) directly because we are an Island nation!
All this continues to mean that if they get here, then we're stuck with them; and so long as we remain in the UN Refugee Convention, then we are unable to apply any penalty against this behaviour.
This means we have no deterrent against them continuing to cross. We need to leave the UN Refugee Convention in order that we can criminalise entry via the Channel and our surrounding sea routes.
FOOTNOTE 2: ARE THE GANGS EVEN DOING ANYTHING WRONG, LEGALLY SPEAKING?
Keir Starmer wants to "Smash the Gangs", which is a good idea.
However, under current law, what are the gangs doing which is "illegal"?
Under Britain's membership of the UN Refugee Convention, the gangs could say that they are simply helping people to exercise their legal right to claim refugee status in the UK.
The government tries to convict (some of) them under the "Modern Slavery Act 2015", on the basis that they are trafficking people to be "exploited" – but seriously!
In Section 2 of that Act:
Human trafficking
(1) A person commits an offence if the person arranges or facilitates the travel of another person
with a view to that person being exploited.
Section 3 defines "exploitation":
(1) For the purposes of section 2 a person is exploited only if one or more of the following subsections apply in relation to the person.
(2) Slavery, servitude and forced or compulsory labour
(3) Sexual exploitation
(4) Removal of organs etc
(5) Securing services etc by force, threats or deception
(6) Securing services etc from children and vulnerable persons
Surely we should not have to wait until we catch someone who is trafficking people for "removal of organs" before we can send them to prison!
Apparently, this is the best we can do to find something to convict the gangs under!
In other words, that is just an attempt to find a way to prosecute (very few of them) while staying within the bounds of the UN Refugee Convention.
Instead, as we say above, we must come out of the UN Refugee Convention so that we can simply make any kind of dinghy entry via the Channel completely illegal; and put them all in prison – both the traffickers and those who make the journey too!
We won't have to do it to very many, or for very long.
The rest will get the message!
FREQUENTLY ASKED QUESTION
Surely under the "Illegal Migration Act 2023" it is already illegal to come across the Channel?
Not quite! That Act aims to make a distinction between "illegal" Channel Crossers (which are those who don't have a genuine claim for asylum under the UN Refugee Convention of which Britain is a member); and what it considers to be "legal" Channel Crossers (which are those who supposedly do have a genuine claim).
However, rather than trying to make this distinction, we argue that it is far better to render the very process of using this Channel route as illegal in the first place, and then start convicting everyone who uses it. That's the only way to stop people using this route.
As we emphasise, this won't be possible until we leave the UN Refugee Convention. When we leave it, we will not be required to bother with those distinctions, nor the massive complications which accrue from those distinctions, and the huge burdens which fall upon us as a result.
REFERENCES
1. See Richard Ekins, John Finnis and Simon Murray, "The Nationality and Borders Bill and the Refugee Convention 1951: Where the Joint Committee on Human Rights goes wrong," (Policy Exchange, 31-1-22). Opens as a PDF here.
2. Nick Timothy and Karl Williams, "Stopping the Crossings: How Britain can take back control of its immigration and asylum system", (Centre for Policy Studies, November 2022) here.
3. Policy Exchange, "Stopping the Small Boats: A 'Plan B': A Policy Exchange proposal for addressing the crisis", (2022) here.
4. "Stopping the Small Boats" considers new statutory provisions required to map a way around Human Rights law (at p37) but membership of the ECHR remains an elephant in the room.
For more articles on this subject see our Territorial Sovereignty: Article Index
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