LeaveHQ, 21/03/2016  

Pending longer-term answers to the immigration problem, there are plenty of things we can be doing in the meantime. The adoption of freedom of movement does not totally remove the ability of member states to control the flow of migrants from other EU member states.

For instance, the right of residence to citizens of EU member states for more than three months is conditional on those citizens being economically self-sufficient. Those who are not can be deported under existing EU law.

Additionally, within the EEA – if we take this route – there are the “safeguard measures” which permit the EFTA states unilaterally to take action if “serious economic, societal or environmental difficulties of a sectoral or regional nature arise and are liable to persist” as a result of excessive migration.

In imposing any controls, though, we should be careful not to interfere with tourism and other economic activity. An estimated 34 million international visitors, worth £22bn to the economy, entered the UK in 2014. Foreign students were worth £17.5 billion in 2011.

High volume of movement across our borders makes control at the point of entry problematic. The bulk of illegal immigrants are “regular” entrants who then overstay. Furthermore, if we stop legal immigration, we can expect to see more overstayers.

To deal with this problem, we have to improve the system across the board, including measures to detect and remove illegal immigrants already in the country. Importantly, any policy must recognise that the greater proportion of immigration comes from non-EU countries. The largest single source is India. Many migrants enter via the family reunification scheme which allows spouses and close relatives to join family members already here. Much of this is mandated the European Convention on Human Rights (ECHR), to which Britain is a party. To limit family reunification, Britain may have to denounce the Convention.

Migration, however, is by no means just a creature of regulation. Greater forces, such the war in Syria, trigger population movements. To an extent, government intervention simply shapes and directs flows. Solutions, therefore, may require reducing the impact of factors which give rise to immigration, or steer migrants towards one country rather than another. These are called “push” and “pull” factors.

The essence of the problem for Britain – and the EU in general - is that there is little in the way of co-ordinated policy. For instance, the relationship between trade with less developed countries and migration are well known, yet migration policy is dealt with entirely separately, without any apparent recognition of the effect of trade deals on migration and whether they intensify or relieve pressure. We thus need to take measures to integrate industrial and trade policies with foreign policy, aid policy and even defence policy.

Asylum policy

Foreign nationals coming to this country as asylum seekers belong to an entirely different category of immigrant. Although often described and treated as such, they are not illegal immigrants if they are relying (or seeking to rely) on the protection of the 1951 UN Convention relating to the Status of Refugees, and the 1967 Protocol. The policy response to these “irregular” migrants therefore, needs to be defined separately.

The Convention also lays down minimum standards for the treatment of refugees, without prejudice to States granting more favourable treatment. It also contains safeguards against expulsion, known as the principle of non refoulement (non-return). Those accepted as refugees cannot be expelled or returned against their will to a territory where they fear threats to life or freedom.

While the diverse and varied provisions grant rights to potential asylum seekers, nothing in law requires Member States to permit those seeking asylum to gain access to their territories in order to claim those rights. However, once asylum seekers are physically present on the territory of a particular Member State, they must be dealt with according to international law.

To prevent people gaining physical access, policy is often focused on stopping them entering Member State territories, using fences and other barriers. But the effect of this “fortress Europe” policy has been to divert flows, and to increase the costs and risks for asylum seekers as they resort to sea routes.

At face value, therefore, there is much to commend the Australian policy of offshore processing, in situ resettlement of genuine refugees, with detention and return of failed asylum seekers. It is a highly attractive option for the UK. However, to implement any version of that policy, the UK must release itself from EU treaty obligations and – preferably – withdraw from the ECHR. It must also withdraw from the 1951 UN Convention.

Should offshore processing be adopted, the main issues become the need to identify suitable sites and to agree costs. The costs are high, although so are the alternatives. Detention and removal of failed asylum seekers works out at around £11,000 for each person processed.

There is also the greater problem of the “unremovables”. If governments are not prepared to release them into the community, indefinite detention is the only option. To implement that, governments must have public support and be able to withstand the opprobrium of other nations, international organisations and interest groups, as well as the relentless negative media coverage that such a stance brings.

In practice, no liberal democracy can sustain a policy of mass onshore detention indefinitely. This is the one advantage of offshoring: the problem is less visible. But, governments which cannot invoke this option can rarely get support for an overt “open door” policy either. They are caught in an irresolvable impasse, forcing them to “fudge” the issues.

Fairly relaxed rules are applied to the definition of refugees, so as to maximise the number of people who can be allowed residence, and the “unremovables” are “lost” in the system. When numbers build up, they are given amnesty – usually thinly disguised as administrative “regularisation” – while only the tiny minority, for whom there is a realistic chance of removal, are detained pending removal.

The problem stems in part from the original Convention definition of the refugee, which has that status applying to those who are outside the countries of their nationality. Crucially, once acquired, that status remains until the refugees either return to their countries of origin or acquire new nationalities and enjoy the protection of their adoptive countries.

Effectively, refugees can resolve their status in only one of two ways – either by returning to their countries of origin, or by moving to a new country and acquiring citizenship there. By this means, the Convention – perhaps unwittingly – becomes a driver of migration.

Yet asylum seekers are not immigrants, per se, seeking a new life in different lands, but people seeking protection under international law. In order to gain continued protection, they have to become immigrants. This is reinforced by the domestic policy response, which produces legislation binding together immigration and asylum, with asylum issues handled by the Home Office and an immigration minister.

Such a situation may have been logical in the aftermath of the Second World War in Europe. It was this for which the current Convention was framed. But, under the terms of the Convention and the 1967 Protocol, hundreds of millions of people from all over the world could qualify as refugees legitimately claim asylum in developed countries. The root of the problem is in the very concept of asylum.

One solution might be to limit the definition of a refugee to those who have reached a place of safety for the first time, after having left their own countries for fear of losing their lives or freedoms If they then move to another country in search of better conditions, they should be defined as immigrants rather than refugees. As such, they would be entitled to no more favourable rights or privileges than any other would-be immigrants.

This still begs the question as to how to deal with those who present themselves to UK officials without authority to enter or remain and prove “unremovable”, if not by virtue of Convention rights, the European Convention of Human Rights (ECHR), then simply because no other country will accept them if they are deported.

If these people are eventually allowed full citizenship, this undermines the entire immigration system. But, short of the unacceptable prospect of detaining large numbers of people, including women and children, for an indefinite period, it is unlikely that there is available a unilateral solution.

Not least, the UK is heavily reliant on agreements with the French government which permit, inter alia, British immigration officials to work in Paris and on Eurostar trains. One of these is the 2003 Le Touquet Agreement – which allows British officials in Calais and Dunkirk to check travellers’ documentation, refusing those without the correct papers to journey to England. They have greatly reduced the number of asylum seekers arriving in the UK.

Further cooperation might be secured by formalising a “burden sharing” arrangement with France and other EU Member States, in return for their accepting the return of irregular migrants intercepted at UK ports. A realistic quota is a reasonable price to pay for the cooperation of EU member states. However, this should be negotiated annually and, as other measures bite – or there is a downturn in numbers - the quota could be reduced.

In the medium to longer-term, the entire approach to asylum seekers might benefit from restructuring. Much more is spent annually by developed countries in assessing (and rejecting) claims for refugee status than is spent on the care of displaced persons in the regions of origin. The balance is wrong: we need to enable refugees to stay close to their homelands. Changes to UK government departments and priorities might help here.

The Department for International Development (DfID) might be re-integrated with the Foreign Office and trade policies linked with aid. Then refugees should not be treated as immigrants but as short-term residents awaiting return.

This is then the advantage to be gained from leaving the EU. The independence of action would enable the UK to target its action without reference to a consensus defined by multiple interests, and instead address real world problems with a view to solving them.

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