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Why can't the UK stop migration?
Andrew Collingwood demystifies the powers that have long prevented the UK from taking control of its borders...
Written and narrated by Andrew Collingwood
In 2022, nearly 46,000 people crossed the English Channel in what are referred to as 'small boats'. This catchall term obscures the horrifying reality. Young men -- for it is mostly males who are reckless and physically strong enough to make the journey -- pay some of the most malignant and ruthless criminals on the planet to spirit them to beaches in Northern France, where they are stuffed onto poorly maintained old dinghies. Dangerously overloaded with their human cargo, these leaky, inflatable small craft will then attempt to cross the busiest shipping lane in the world. If they don't drown or die of exposure, those aboard will reach the South Coast in Britain. Almost all who do will eventually succeed in making Britain their home.
Scaled to the population of the United States, last year’s numbers would be the equivalent of a quarter of a million. The crossings cost the British taxpayer billions of pounds, make a mockery of UK migration law, fund people smugglers and other criminals, have negative social and security consequences in the UK itself, and are hugely unpopular with the British electorate.
This so-called migration crisis, however, is also reflective of much broader issues related to the governance of the UK (and perhaps the entire West). Whatever the rights and wrongs of the crossings themselves – or the morality of Britons who wish them to be stopped – the fact is that for years it has been the stated and repeatedly confirmed policy of successive British governments to ‘solve’ the issue. Instead, the numbers have increased almost exponentially: per data drawn from Gov.uk, the British state’s official website, in 2018, 299 people made the crossing; in 2019 it was 1,843; last year, 45,756 waded ashore.
Importantly, the reasons for this dismal failure are much the same as the causes of the decline in the overall standard of British public administration. First, an incompetent political class incapable of long-term planning, accepting reality or making difficult choices. And secondly, a political commitment to a model of governance that seeks to insulate a broad range of important policy areas from the influence of ordinary voters by transferring them instead to the supranational level, where NGOs, academics, specialist technocrats, and multinational corporations effectively set a Legislative Overton Window in which governments may operate.
For the last three-quarters of a century, British governments have consistently underestimated the likely scale of future immigration – and to a risible degree. In 1948, amid accelerating changes to Britain’s relationship with its empire, Parliament passed the British Nationality Act, which put British subjects within the UK’s Dominions and Commonwealth on equal footing to those in the British Isles. In other words, somebody born in Kingston, Jamaica had by law as much right to live and work in Britain as somebody born in Kingston-upon-Thames.
It seems to have come as a shock to Members of Parliament that a person living in crushing third-world poverty might see value in moving to one of the richest and safest nations on earth. The Cabinet Papers, a collection of National Archive reviews of government documents, show that, rather as with the small boat crossings of the Channel, what started as a trickle soon developed into a deluge. For the five years after the passing of the Act, “immigration from colonies remained at no more than 2,000 per year. This increased in 1954 and had reached over 135,000 by 1961.”
As we shall see, ‘word gets around’ is one of the most powerful driving forces of migration.
Half a century later, another Labour government repeated the mistake. In 2004, the EU expanded with the accession of the so-called A10 countries, Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia. Given that eight of these countries had recently been members of the much poorer Soviet Bloc, many of the existing, Western European EU members harboured concerns that sudden access to the EU’s freedom of movement rights would lead to a surge in migration. To this end, the Netherlands, France, Germany, Austria, Spain, Portugal, Belgium and Luxembourg placed restrictions on migrant workers, including quotas or 2-5 year transition periods.
Not Britain. The Home Office estimated that only 5,000-13,000 immigrants a year would arrive from the new ‘A8’ Eastern European members, and it therefore saw no need to apply restrictions. Strangely, it turned out that many Eastern Europeans did want to avail themselves of the opportunity to live and work in a country where standards of living and wages were massively higher than in their own: average immigration from the A8 nations into Britain was 72,000 per year, eight times more than the middle of the Home Office’s forecast range.
The same thing happened in 2014 when Bulgarian and Romanian citizens gained free movement rights. Migration Matters, a cross-party lobby group chaired by Barbara Roche, formerly the Blair government’s Minister of State for Asylum and Immigration, forecast that the number of Romanian and Bulgarian people coming to work in Britain would be at most 20,000 a year. As Ed West wrote for the Spectator last year, “Twitter was full of journalists and other public intellectuals laughing about how we were going to be ‘swamped’. Why would Romanians, after all, want to come here, to this miserable rainy island?” Meantime, a Guardian opinion column suggested that “all the ‘invasion’ predictions… have more in common with astrology than demography,” while the aforementioned Migration Matters accused opponents of “pursu[ing] a partisan and divisive political agenda.” Mr West continued:
“The Open Democracy think-tank declared that notions that ‘people will move to richer countries to earn more money’ are too simplistic. ‘Serious migration studies, however, are aware that the drivers of migration are much more complex and that migration systems, migration networks, migration politics, opportunity-constraints structures, social and human capital, perceptions and imaginations, individual characteristics and emotions play crucial roles.’
You, an idiot: people will move if they’re offered loads more money.
Me, a think-tanker: opportunity-constraints structures, social and human capital, perceptions and imaginations…”
The idiots, astrologers and divisive political partisans beat the experts again. By 2017, there were 413,000 Romanians and Bulgarians living in Britain, implying that some 90,000 had immigrated every year since the beginning of 2014 – three and a half times the government’s estimate.
In 2016, Britain voted to leave the European Union, in part due to the backlash against the high levels of migration from the A8 and A2 countries. While the Conservative governments in power during the Brexit negotiations and since have removed freedom of movement rights from EU citizens, migration remains at tremendously high levels. Last year, Britain handed out an all-time record 1.1 million visas for foreigners to work or live in the UK (the equivalent of nearly five million if scaled to the size of the US population). Jonathan Portes, a pro-migration economist from the London School of Economics, wrote for the Guardian that EU migration had “largely or wholly been replaced by non-EU migration.” Indeed, Ambrose Evans-Pritchard of the Telegraph has written that Professor Portes believes that Britain’s immigration system is now one of the most liberal in the world.
Yet visas aren’t the end of the UK’s open migration system. 72% of those who arrived uninvited on the South Coast in 2021 were granted asylum – nearly three times the rate of acceptance in France. Indeed, even those who are refused asylum have a good chance of making Britain their home. Most of the Channel migrants are housed in hotels while their claims are processed. In 2016, when there were fewer claims, 56,000 absconded. As far back as 2017, it was accepted that those living and working illegally in Britain stood “little chance of being caught”. Before continuing, readers are encouraged to post in the comments their guess for how many illegal migrants were removed from the UK in 2021.
The notion that the majority of those 45,756 people who crossed the Channel on small boats are genuine refugees, or are in need of asylum, can be refuted by two facts. First, in 2021, the Home Office revealed that thousands of those crossing the Channel to seek asylum in the UK had already had claims rejected in other European countries. One in six had travelled to Britain from France, Germany, Greece, Denmark or Switzerland – law-governed, civilised nations with functioning asylum systems – after having their applications denied.
Secondly, almost a third of last year’s Channel crossings were made by Albanians. While Albania might be a relatively poor country with an imperfect democracy, it is no longer a totalitarian nation and is certainly not at war. Between May and September last year, 42% of all crossings were made by Albanians. The extent to which Albanian men have availed themselves of Britain’s de facto open southern border can be seen in the fact that 2% of the Albania’s entire male population has now entered the UK by crossing the channel in small boats.
This particular matter is an excellent example of the problems caused by open borders. Dan O'Mahoney, the Clandestine Channel Threat Commander at the Home Office, told the House of Commons Home Affairs Committee on 26 October last year that “There is a huge amount of very harmful serious and organised criminality in the UK committed by Albanian criminal gangs. Whatever sort of criminality you can think of, the most serious sort, there are Albanian criminal gangs dominating in those markets, be it drug smuggling, human trafficking, guns, prostitution.”1
No British government can honestly argue it is making a serious attempt to deal with the migrant crisis as long as its plans do not include unpicking the interlocking international commitments, treaties and national legislation that support the current system and prevent effective reform.
The first of these is the 1951 United Nations Refugee Convention, to which Britain is a signatory. Written to deal with the aftermath of the Second World War, the European population exchanges in the years that followed, and to provide a legal framework for those seeking to escape the Soviet Bloc countries in Europe, the 1951 Convention defined a refugee, and set out the rights of those seeking asylum and the responsibilities of states that grant asylum. It defined a refugee as somebody who:
As a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”
This 1951 Convention was supplemented in 1967 by the Protocol Relating to the Status of Refugees, which removed the limitations on time (“before 1 January 1951”) and geography (the 51 Convention concerned European refugees). Furthermore, British judges have widened the application of the 51 Convention and the 67 Protocol to include persecution by non-state actors. Migration Watch UK points out that British judges have:
…granted asylum to homosexuals from Jamaica on the grounds that they would face persecution from their fellow citizens. And, in the Shah case (1999) the Law Lords [the predecessor of the UK Supreme Court] ruled that women in Pakistan could constitute a persecuted "particular social group" who were entitled to asylum because they were subject to discrimination and inferior status in Pakistan. (There are approximately 65 million women in Pakistan).
These two treaties and their interpretation by the British judiciary are directly reflected in the UK’s official eligibility criteria for asylum. It states that:
To stay in the UK as a refugee you must be unable to live safely in any part of your own country because you fear persecution there. This persecution must be because of: your race; your religion; your nationality; your political opinion; [or] anything else that puts you at risk because of the social, cultural, religious or political situation in your country, for example, your gender, gender identity or sexual orientation.
Of course, these criteria could apply to women in the Muslim world beyond Pakistan, hundreds of millions of whom, one might argue, could fear “persecution” by western standards due to “social, cultural, religious or political situation in” their country. Furthermore, the grounds for eligibility extend beyond “gender”. Any homosexual or transgender person anywhere in Africa, the Middle East and parts of Asia might have grounds to be granted asylum based “gender identity or sexual orientation”, as might any Kurd in Turkey, Iran, Iraq or Syria based on “race” and “nationality”. Likewise, there must be hundreds of millions of people who follow one religion or another in the developing world – the Middle East, Pakistan, Sub-Saharan Africa, and even potentially India spring to mind – who might be eligible for asylum because they “fear persecution… [based on their] religion”. And how many people in China, Myanmar or Central Asia do we imagine could “fear persecution” for their “political opinion” because of the “political situation in [their] country”?
Worse, the 51 Convention also forbade the imposition of penalties on refugees who presented themselves without identifying documents, such as passports. This made sense after the Second World War when so many had lost their belongings or were stateless. However, Migration Watch UK contends that “This is being exploited by asylum seekers are who are instructed by people traffickers to destroy their documents” in order to make their removal from Britain more difficult.
It is not hard, therefore, to see why so many of those who climb out of dinghies on Britain’s south coast and wade ashore are eventually granted asylum: the bar is set so low that almost anybody can jump it. In business terms, the total addressable market of eligibility for asylum in the UK would surely run into ten figures.
The second of the international obligations that prevent British governments from taking action to stem the flow of small boat arrivals across the Channel is the European Convention on Human Rights, which entered into force in 1953. Like the 51 UN Convention, the ECHR was drafted in the aftermath of the Second World War, specifically with an eye to the political horrors of the 1930s. The Convention sought to prevent a re-emergence of totalitarianism by protecting by treaty the human rights and political freedoms of European citizens.
In 1998, the Labour Government of Tony Blair passed the Human Rights Act, which enshrined the HCHR into British Law. As Martin Howe KC points out, however, the Human Rights Act did not just import the articles of the Convention into British Law. “It also required our courts to ‘take account’ of [the] judgments” of the Strasbourg-based European Court of Human Rights, which interprets the Convention. The Strasbourg court has gained a reputation for judicial activism whereby it seeks not only to interpret the Convention, but to develop the suite of rights and protections it affords. Mr Howe contends that in practice this has led to the Court engrafting and extending rights onto the Convention “which are not justified by its wording. In some cases – such as prisoner voting – these can be shown to be contrary to the actual intentions of the drafters of the Convention.” British judges, in turn, have interpreted their 1998 Human Rights Act obligation to ‘take account’ of the Strasbourg Court’s judgements as meaning that they must follow its consistent case law.
This combination of the European Convention of Human Rights, the 1998 Human Rights Act, and activist judges in Europe and Britain, has made the removal of unsuccessful asylum claimants and illegal migrants extraordinarily difficult.2 This is the real reason successive British governments have made no progress on dealing with the migrant crisis. They refuse to contend with its fundamental causes: a system of international treaties, British law and an activist judiciary that make it simultaneously easy to gain asylum and difficult to be removed in the event asylum is refused.
In an excellent short documentary, William Clouston, the leader of the UK’s Social Democratic Party, made the salient point that the migrants themselves are acting rationally. To requote Ed West: “You, an idiot: people will move if they’re offered loads more money.” Furthermore, English is the global lingua franca and many people speak it as a first or second language. Successful claimants can expect immediate access to the British social wage, including healthcare and accommodation. Our labour market is uniquely open and, unlike in European nations, we do not require citizens to carry identification cards. Britain, due to its remarkably liberal migration policies over many decades, also has large diasporas that can help migrants when they arrive. And, ultimately, word gets around: as we have seen with the 1948 British Nationality Act, the A8 and A2 ordeals, and the recent South Coast migrant crisis, numbers start small, but increase exponentially when others back home find out that moving to Britain is possible. All of which is to say that open migration policies not only increase immigration in and of themselves, but also expand the pool of those attempting to migrate.
As a law-based society, Britain will not deal with the South Coast migrant crisis until it unpicks the legal framework that facilitates it. Yet our political class has been unwilling to address this truth, because to do so would be to undermine the entire governing philosophy that dominates parties on both sides of the political aisle – not just in Britain but across the Western World. In an excellent essay for Unherd, Tomas Fazi explained how for many decades, political elites have sought to transfer policy decisions from “governments and nation-states” to “a whole range of non-government stakeholders: civil society bodies, academic experts, media personalities and, most important, multinational corporations.” In effect this has, Mr Fazi argues
[insulated] policy from democracy by transferring the decision-making process from the national and international level, where citizens theoretically are able to exercise some degree of influence over policy, to the supranational level, by placing a self-selected group of unelected, unaccountable “stakeholders”… in charge of global decisions.
This system of “multistakeholder” governance has led to a myriad of interlocking treaties, obligations and case law that fetter the attempts of governments to deal with problems important to ordinary people, such as deindustrialisation, the advance of liberal-progressive ideology, the effects of globalisation on the western working and middle classes, and, of course, high levels of migration.
Emasculated governments pay lip service to voters' concerns, but ultimately they are entirely committed to the system itself. Thus, the problems get worse. In this sense, the migrant crisis, and the government’s dismal failure to do anything about it, is symptomatic of Britain’s broader decline, which will not be arrested until people who can see beyond the dominant ideology of governance can implement something else.
Andrew Collingwood is a writer and the co-host of Multipolarity, a podcast focusing on the economic and geopolitical consequences of the shift to a multipolar world order. He also writes BritanniQ, a weekly digest for intelligent Britons.
Mr O’Mahoney went on to reveal that many Albanians who crossed the Channel in small boats did not seriously wish to claim asylum. Some, he said, genuinely needed help, but that “a large number” were “gaming the system” and were “not actually interested in seeing their asylum claim through. They want to get through it as far as they can, we’ll typically put them in a hotel for a couple of days and then they’ll disappear.”
The way this works in practice is complicated for the layman, but Migration Watch UK offers a clear and mercifully brief explanation:
Article 5 (f) [of the HCHR] permits the detention of a person against whom action is being taken with a view to deportation or extradition. However, British judges have ruled that detention is illegal unless the deportation is imminent. Meanwhile, Article 6 provides that "everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law". This, in practice, means lengthy judicial review and appeals processes. So, once a judicial review or appeal is lodged, deportation ceases to be "imminent" and the applicant must normally be released from detention even if his legal challenge is later shown to be meritless. It is noteworthy that Mr Justice Munby recently criticised delays to a deportation case caused by a string of meritless appeals (The Times 10/4/03). In other cases Article 8, which provides that "everyone has the right to respect for his private and family life", can also be brought into play. If an asylum claim has already taken a considerable period the applicant can contest his deportation under this Article on the grounds that he has established a family life in Britain.