The Myth of the ‘Illegal’ Asylum Seeker

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UK Home Secretary, Priti Patel, has recently revealed that asylum seekers arriving in the UK ‘illegally’, who may have travelled through a ‘safe third country’ to do so, will be liable for removal from the UK at any time (even after they have secured refugee status). But can asylum seekers actually come to the UK ‘illegally’?

The short answer is no, not in the way the Home Secretary has been desperately trying to depict. The idea of the ‘illegal’ asylum seeker is a falsehood that has been actively peddled by the Home Office and the Home Secretary in recent years. When people talk about asylum seekers coming to the UK ‘illegally’, what they really mean is asylum seekers arriving via informal and unofficial routes, such as crossing the Channel via small boat. However, asylum seekers are legally allowed to come to the UK even when making an ‘illegal entry’. As, although it would be illegal for migrants who are not seeking asylum to enter by such means, asylum seekers are entitled to come to the UK via whatever means possible, provided they inform the authorities of their presence upon their arrival and have good reason for seeking asylum. Asylum seekers cannot therefore come to the UK ‘illegally’; illegality may only ever occur if they do not report their presence to the authorities and remain in the UK as undocumented migrants.

Both international refugee law and the UK’s immigration and asylum law protect asylum seekers arriving via unofficial routes (again, provided they make their presence known to authorities). Article 31(1) of the 1951 Refugee Convention ensures that State Parties cannot punish refugees and asylum seekers for entering a State via unofficial routes. While Section 31(1) of the Immigration and Asylum Act 1999 ensures that refugees who arrived as asylum seekers via informal routes should not have this held against them or marked as an immigration offence. This is designed to protect such refugees from being unfairly punished and/or denied British citizenship under the guise of the ‘good’ character requirement, which can prevent refugees with immigration (and other) offences from attaining citizenship for up to ten years after an offence occurs. However, Section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, which addresses how an asylum seeker’s credibility should be assessed during the asylum application process, has been used as a tool to punish asylum seekers entering the country via informal routes and to ignore mitigating circumstances concerning how quickly asylum seekers inform the authorities of their arrival.

The Home Secretary has tried to justify the new proposals by claiming that asylum seekers can instead seek refugee status in EU Member States they (may) have passed through on their way to the UK. This is unsurprising, given States are often eager to promote the ‘safe third country’ principle in order to reduce inward migration. The principle enables States to return asylum seekers to another country they have links to or passed through upon fleeing their country of origin, provided that the country is considered ‘safe’ and will lawfully hear their asylum claim. However, the implementation of this principle is highly contentious and often condemned by human rights lawyers and NGOs, as not all ‘safe’ countries are safe for different demographics. Some asylum seekers may be at risk of persecution and, even if recognised as refugees, face being returned to their country of origin by the ‘safe’ third country, as has been witnessed with the fallout of the ‘EU-Turkey Statement’. In 2016, heads of EU Member States and Turkey came to an agreement regarding migration and declared Turkey a ‘safe’ third country for refugees and asylum seekers to be returned to from the Greek islands. Since, Turkey has been criticised for inhumane treatment, at times amounting to torture, of asylum seekers and refugees, as well as returning Syrian refugees to Syria in violation of the principle of non-refoulement under international refugee law. The ‘safe’ third country doctrine also negatively reinforces the widespread issue of countries closest to war-torn States being overburdened by refugee crises, without the rest of the world allowing asylum seekers in (or believing they have an obligation to do so). The UN Refugee Agency (UNHCR) has been quick to confirm that, under international law, asylum seekers do not have to seek asylum in the first ‘safe’ country they arrive in, or travel through, and has condemned Patel’s new proposals.

The Home Secretary’s recent submission, that refugees who, as asylum seekers, arrived in the UK via informal routes will have different rights to those who arrived via formal routes, therefore fundamentally undermines the process of seeking recognition as a refugee. Not only are formal routes for seeking asylum extremely limited in normal times, but due to the impacts of COVID-19, ‘legal’ routes have been cut off almost entirely and official government refugee resettlements unsurprisingly fell from 1,408 in March 2019 to zero in March 2020. Furthermore, allowing an asylum seeker’s mode of entry to the UK to affect their asylum application, and the security of their (potential) future refugee status, simply ignores the possibility of asylum claims coming from those who have made an ‘illegal’ entry having more merit than those who entered ‘legally’. If governments try to restrict asylum to only those seeking asylum via formal, ‘legal’ routes, they are only punishing asylum seekers in most dire need of help, and wholly undermining the principles of the asylum process, in an attempt to promote an ‘anti-immigration’ image to the electorate and intentionally blur the lines between economic and forced migration.

Such proposals by the Home Office are therefore yet another blow to the most vulnerable in our society, at a time when this government has also been guilty of eroding formal routes for seeking asylum and thereby forcing asylum seekers (including lone children) into the hands of human traffickers. While Patel has already praised the recent proposals as the biggest overhaul of the UK’s asylum system in decades”, it is instead evidently a continuation of the past, solidifying the UK’s recent and increasingly Thatcherite legacy of turning its back on those in need while attempting to further erode the rights of the ‘other’.

Blog written by: Amelia Süsserott, first-year PhD Law student. Amelia's thesis topic is 'A Right to Naturalisation? A Critical Race Critique of the Naturalisation Process for Refugees in the UK’.


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