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Why Home Office ‘push back’ policy on refugee boats has been declared illegal

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Original article from Kent Live

A new Home Office policy to turn back refugees crossing the channel in small boats has sparked indignation and fury from the refugee charity sector.

Home Secretary Priti Patel has authorised Border Force to "push back" vessels carrying desperate people across the Channel, meaning some crafts that have entered the UK's waters could be forced back towards France or into international waters.

It is believed that these tactics will only be used in limited circumstances – but they have enraged human rights groups, who have criticised the move as 'depressing', 'extreme' and 'illegal'.

Read more: 'England is hope': A day in the life of desperate refugees on the Kent coast

The move has drawn comparison to similar 'push back' operations carried out by the EU that have been found to be linked to thousands of refugee deaths.


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However, a Whitehall source told the Mirror that people were already dying making the dangerous crossing, and the point of pushback is to deter those people from taking to dinghies in the first place.

What do the critics say?

The communications director for the Joint Council for the Welfare of Immigrants, Minnie Rahman, hammered the move, stating it would risk the lives of refugees whilst failing to achieve the government's goal of reducing crossings:

"Patel's proposal on push-backs is so extreme and dangerous that it is a disgrace it’s being touted by a British Government.

"It would mean British vessels dragging dinghies into French waters and leaving people to starve or drown at sea.

"In doing so, UK officials would be breaking maritime law.

"Similar methods have already been linked to thousands of deaths in the Mediterranean, and it’s absurd to expect Border Force to use these deadly tactics in the channel.

"If the government wants to end dangerous crossings, they must act within the realms of logic and reason and introduce regulated means of travel for people seeking asylum in the UK.”

It is understood by The Mirror that Priti Patel gave the greenlight for the new instructions having been informed it would be legal to employ these controversial 'push back' tactics, and that they would only be employed in select circumstances.

Refugee Action, another human rights organisation, echoed the JCWI's criticism of the plan in a tweet:

So what does international law say?

We at KentLive aren't international law scholars, but a little digging explains why the policy's implementation will be very limited if it is to be lawfully carried out.

The United Nations High Commissioner for Refugees' published paper on the matter states that the requirement to aid those in peril at sea is supported by four separate international conventions:

"These conventions explicitly contain the obligation to come to the assistance of persons in distress at sea.

"This obligation is unaffected by the status of the persons in question, their mode of travel, or the numbers involved.

"The obligation to come to the aid of those in peril at sea is beyond doubt."

KentLive uses the term people when referring to those who cross the Channel and arrive on our shores.

That's because, regardless of their status at the point of entry, those moving from one country to the other are human beings.

You will have seen them commonly referred to as migrants. This is not incorrect.

The UN Migration Agency defines a migrant as – any person who is moving or has moved across an international border or within a state away from his/her habitual place of residence, regardless of the person’s legal status, whether the movement is voluntary or involuntary, what the causes for the movement are, or what the length of the stay is.

KentLive also refers to people in these circumstances as refugees.

The UN definition of refugees is – people who are outside their country of origin for reasons of feared persecution, conflict, generalised violence, or other circumstances that have seriously disturbed public order and, as a result, require international protection.

For the UK to act legally under these conventions, the refugees being 'pushed back' would have to not be at risk.

However, the implementation of similar tactics in the Mediterranean have been linked with violence by European border patrol officers to ensure boats were returned to where they had come from.

It's also important to note that the English Channel is still the busiest shipping lane in the world, with refugee dinghies sharing the water with 500-600 cargo ships, freight vessels and other craft.

Many of the crafts brought in by the Border Force are not fit for crossing the channel.

This high volume of traffic makes the channel especially dangerous.

And that is without taking into account the usual risks of crossing a 20+ mile stretch of open sea in a small, questionably seaworthy craft as many refugee dinghies are.

As such, the call on what boats are and aren't 'at risk' and thus needing rescue is now to be left up to the Border Patrol, and any error of judgement could leave a craft stranded in a notoriously dangerous part of the ocean.

The obligation to take in asylum seekers

The case made in the UN Human Rights Commissioner paper also cites the United Nations' Executive Committee, which in 1979 made clear the position of the UN on what to do with vessels that might contain refugees entering a country's waters:

"“It is the humanitarian obligation of all coastal states to allow vessels in distress to seek haven in their waters and to grant asylum, or at least temporary refuge, to persons on board wishing to seek asylum.”

The University of Oxford's inspection of International Maritime Law also supports this, simply saying: "Non-assistance to refugees and migrants at sea is not a legal option.

"Unfortunately, even states that generally take human rights seriously often fail to honour these obligations."

So what have other push-back operations looked like?

Looking to a similar policy carried out in the Mediterranean by EU member states does not paint a pretty picture of the reality of 'pushing back' refugee boats

A report from the Border Violence Monitoring Network found that 89 per cent of Mediterranean pushback operations carried out by the Greek government had involved excessive use of force.

The report also stated that, "“BVMN has observed the disproportionate and excessive use of force.

"This alarming number shows that the use of force in an abusive, and therefore illicit, way has become a normality."

More than 2,000 deaths were also linked to the Mediterranean implementation of the policy in a report by The Guardian.

The study revealed that 40,000 people were 'pushed back' by various Mediterranean governments with these tactics – meaning that one in twenty people made to turn around went on to die at sea.

Refugees crossing the channel may run the risk of being turned away under new home office guidance.

This is not to imply that the Home Office's policy would take any kind of similar approach, or produce similar outcomes, as the border situation in the Mediterranean is fundamentally different to that between the UK and France.

The Mediterranean is also far larger expanse of water, meaning being turned around would entail a much longer return journey carrying with it higher risks of becoming stranded.

Rather, it demonstrates that the practice of 'pushing back' refugee boats is not a policy that can comes without baggage and some risk of cost to human lives.

What the UK and French governments say

The rationale for the policy has, however, been explained by members of the government.

Care Minister Helen Whately said: "The Government looks at all the options.

"But a really important thing, of course, is you wouldn't want to put people in any greater danger.

"They're taking a dangerous journey as it is, and what we want to do is actually deter them from starting that journey in the first place."

A Home Office spokesperson said: "We do not routinely comment on maritime operational activity."

The move has not been backed by the French government, however.

French Interior Minister Gerald Darmanin tweeted: "France will not accept any practice that goes against maritime law, and will not accept any financial blackmail."

With so many voices involved, from the charity and human rights sector to national governments and international bodies, clarity on what this policy means or how it will look is near-impossible.

However, it's clear that whatever form 'push-backs' take will be deeply controversial, and will likely become yet another regular fixture in the UK's dispute over asylum seekers.

Original Article