Asylum overhaul: Priti Patel’s “turnback” tactics and international law

In her time as Home Secretary, Priti Patel’s stance on immigration and asylum seekers has been called “callous,”  and “inhumane”, and the legislative changes she continues to implement further the government’s anti-immigration agenda.

Patel’s recent instruction for border control to employ “turnback” tactics to small boats carrying migrants and asylum seekers is just another example of this.

This action has been condemned as dangerous and deadly, and discussions have been raised around whether these tactics are in breach of international law.

Orders for pushback tactics

Last week, reports emerged that the Home Secretary, Priti Patel, had ordered another attack on asylum seekers with a new hostile policy. Dubbed “turnback” tactics, UK Border Force has been instructed to compel small boats in the English Channel to return to France.

According to a government spokesperson, this would be done in a “safe and legal way, and only in “limited circumstances” under a “pre-authorised policy signed off” by Patel. The UK Border Force has also reportedly been training to employ these tactics for months.

This announcement comes alongside the Nationality and Borders Bill, which was published in July and seeks to “rapidly remove” asylum seekers who arrive in the UK via “unauthorised routes.” This bill has also rightfully received huge waves of criticism, with critics warning that it denies protection to potential trafficking and slavery victims and criminalises Afghan refugees.

Rossella Pagliuchi-Lor, the UNHCR’S representative in the UK, commented: “I find it ironic, to be honest, that the very same people we felt so affected by when we saw them hanging from planes in Kabul, or those we are now discussing how they should be extracted … if they extracted themselves and made it here, they would, if that bill were law, be liable to potentially four years in jail and then subject to some attempts to return them to some other countries.”

A breach of international law?

As soon as these turnback plans were announced, the legal framework was immediately questioned. As per Article 98 of the UN Convention on the Law of the Sea 1982 (LOSC), every state requires its ships “to render assistance to any person found at sea in danger of being lost”. This is bolstered by the International Convention for the Safety of Life at Sea and the International Convention on Maritime Search and Rescue.

In addition to this, the Universal Declaration of Human Rights, the Geneva Convention and EU legislation protect individuals’ right to apply for asylum. Experts have argued that Patel’s plans contravene each of these legal protections.

The French government has been very vocal about its disagreement with Patel’s proposals, too. The French interior minister Gérald Darmanin even wrote a letter to the Home Secretary expressing his view on the situation. In this letter, he outlined: “Safeguarding human lives at sea takes priority over considerations of nationality, status and migratory policy, out of strict respect for the international maritime law governing search and rescue at sea.”

Darmanin also tweeted: “France will not accept any practice that goes against maritime law, and will not accept any financial blackmail. The UK must hold up its commitment.”

From a legal standpoint, Sonia Lenegan, legal director of the Immigration Law Practitioners’ Association, argued that it’s “very difficult to believe” that Patel would have received legal advice stating that the proposed pushbacks are “illegal in any circumstances”. Lenegan said it is especially unlikely considering France has “unequivocally stated that they do not support the proposal around interventions at sea.”

Elsewhere, frontbencher Nick Thomas-Symonds wrote a letter to the home secretary, seen by The Independent, which said that her approval of these pushback techniques is “appalling.” He added: “These techniques are dangerous, inhumane, unconscionable and extremely reckless: you are putting lives at risk, including those of children.”

In a statement, Thomas-Symonds argued that the Home Secretary’s consideration of these proposals reveals how “badly” she has “lost control of the situation.”

The UN’s Refugee Agency, United Nations High Commissioner for Refugees (UNHCR), has also outlined its concerns about the risks to which asylum seekers will be exposed, and said: “Once a boat enters UK territorial waters, the UK’s primary responsibility for search and rescue is triggered. Under maritime law, States are obliged to proceed as swiftly as possible to rescue anyone in distress at sea if it is safe to do so and to disembark them safely.”

“Any return and disembarkation of a vessel encountered requires the agreement of the country of return.”

Felipe González, the UN Special Rapporteur on The Human Rights of Migrants, added that the measures are “very worrisome” and prevent the “exercise of the right to seek asylum and other internationally recognised human rights, affecting also children.”

An abandonment of morals

This move has been condemned widely by the global community, with human rights organisations arguing that while “almost certainly unlawful”, these measures are also immoral.

While Culture Secretary Oliver Dowden, argued that the government would “not do anything to endanger lives,” these tactics have been repeatedly found to endanger lives. The UN Special Rapporteur on the Human Rights of Migrants has previously labelled it “cruel and deadly” and called for the immediate end of the practice. Bella Sankey, director of Detention Action, has gone further to call the “lethal response” a “humanitarian disaster.”

Unfortunately, this practice is not a new tactic and has also been implemented by Australia, Greece and Italy.

Commenting on the dangerous nature of Patel’s instruction, The British Red Cross said that these tactics “make already treacherous journeys even more perilous”. Adding: “Crossing the Channel in a small boat is only ever a desperate last resort and an extremely dangerous one. When people’s lives are in danger, they need help, compassion and humanity, not to have their ordeal extended.”

In response to the widespread criticism, a Home Office spokesperson said: “We are seeing an unacceptable rise in dangerous and unnecessary small boat crossings, that’s why we continue to explore all options available to bring these numbers down.”

The spokesperson went on to pin “tackling criminal gangs” and “protecting lives” as its primary focus and objective of the move, saying: “All operational procedures used at sea comply and are delivered in accordance with domestic and international law.”

On Thursday, 16 September, Patel met with Border Force officials in Dover. Prior to her visit to Dover, Sky News recorded video footage of UK Border Force using jet-skis for intensive exercises in the English Channel. The Home Office did not confirm whether or not these exercises were evidence of these training drills in action.