Blog post by David Cantor. It is the second in a four-part series providing commentary on the Illegal Migration Bill and possible alternatives. This piece was originally published on Free Movement blog on 14 April.

The Illegal Migration Bill paints a picture of irresponsible refugees who seem to delight in travelling illegally to the UK in dangerous small boats. Its claim to prevent refugees travelling to the UK by these illegal and dangerous routes is a laudable aim. But the story is not so straightforward. In fact, the Bill seeks likely to exacerbate the illegality and danger that it is designed to thwart.

This post is the second in a four-part series on the Illegal Migration Bill. You can read the first post on the potential breaches to the Refugee Convention here. Later posts will look at whether ‘safe and legal’ routes will stop the boats, and if the government have alternative options.

Governments and voters may dislike it, but irregular migration is a fact of the modern world. No country is insulated from it. However, the role of government immigration policies in shaping the irregular migration patterns of refugees is less well-recognised. The evidence is quite clear that ‘tough’ policies making the lives of refugees harder in the UK have little effect on the number of refugee arrivals.

But some policies do have an impact – albeit, perhaps, not the one intended.

This fact helps to explain how we got to the ‘small boats’ situation in the UK. The story starts in the 1980s and 1990s. As increasing numbers of refugee claimants arrived by plane, some European and North American governments imposed visa restrictions on refugee-producing countries. This pushed the refugees to go instead in greater numbers to other countries that did not require a visa. This ‘beggar my neighbour’ effect came to an end when the other countries followed suit and imposed their own visa requirements on refugee-producing countries.

Did that stop refugees arriving?

Not at all. Instead, these refugees became forced to travel by illegal methods and routes to seek sanctuary. Some continued arriving by plane but could do so only by using false documentation. Others travelled irregularly by land, often using smuggling routes. Safe and legal routes became unsafe and potentially illegal ones. In the UK, this often meant hiding in the back of a lorry or jumping the Eurostar train in order to cross the Channel. Yet these options narrowed as France imposed stricter checks from 2020 onwards, partly in response to Brexit as well as to COVID-19 restrictions.

It is from this point that refugee arrivals to the UK in small boats increase exponentially. The Channel crossing is a very dangerous route. Yet, even if France succeeded in shutting down this route (as a costly recent deal with the UK intends), history suggests this will simply force frightened refugees to find other, likely more dangerous routes, to reach safety in the UK. Other suitable stretches of coast could be used in France, the Netherlands or further afield. Shutting down this one point of crossing will lead to a reconfiguration of irregular routes, not the disappearance of illegal migration to the UK.

Given the role of these earlier government policies in forcing refugees seeking sanctuary in the UK to travel by illegal and unsafe routes, it does seem paradoxical that the Illegal Migration Bill aims to deny asylum to refugees arriving by small boats on this very same basis. As the practical effect of ‘stopping the boats’ from France will likely be to reorient and imperil rather than stop illegal migration routes into the UK, claims by the government that it is waiting to end illegal migration before creating ‘safe and legal’ routes for such refugees seem somewhat disingenuous.

The Illegal Migration Bill also risks merely replacing one kind of illegality with another, arguably more serious, one. There is no doubt that refugees arriving by small boats are travelling irregularly. But they are highly visible – indeed, their visibility is likely what makes them such a high-profile political issue. They are not hidden, nor do they try to hide. These boats welcome interception by the UK Navy or immigration services and do not try to evade them. For most passengers, their aim is to present themselves forthwith to the authorities so they can rightly seek refugee protection.

The Bill, though, takes away any prospect of being recognised as a refugee if an individual arrives by small boat. These refugees will be detained with a view to removal to a ‘safe third country’. At the moment, the plan is Rwanda. Their refugee claims will not be determined in the UK, so they will never have their refugee status recognised here. If released on bail, they will be here without immigration status or the right to work. The practical difficulties of sending large numbers of refugees to ‘safe third countries’ suggests that many refugees could end up living in these conditions almost indefinitely.

Like earlier policy, this approach seems designed to push refugees into illegality. But this time it is after they arrive on our shores, not en route to the UK. Why would a refugee present herself in good faith to the authorities on arrival, or stay in touch afterwards, if there is no prospect of protection, only detention and lack of status? If released on bail, why not simply disappear into irregularity? The Bill seems to create perverse incentives for refugees who travel here irregularly to disappear into the shadows, rather than coming forward and lawfully awaiting the determination of their claim.

In essence, then, the Bill turns illegality en route to the UK into a highway towards illegality in the UK. The former is mainly the concern of any country through which the refugee passes. But once converted into an upsurge of disenfranchised and disaffected people living illegally in the UK, it poses real dangers for our own society on grounds of security, public health and poverty, as well as facilitating the exploitation and abuse of refugees by criminal gangs. Refugees have always made an enormous contribution to our country. This outcome would be a shocking waste of lives and talent.

Certainly, the UK can be generous to people whose lives are in peril, as last year’s Ukraine and Hong Kong schemes show. Figures for arrivals by small boats are not large by comparison; and the UK receives a quite modest number of refugees per capita compared to similar countries. But the Illegal Migration Bill is unlikely to ‘stop the boats’. Worse, it may instead push refugees into deeper and more dangerous forms of illegality, not only en route to the UK but also within it. This is not a sensible or humane way to deal with the challenges posed by incoming refugees fleeing persecution.

Professor David Cantor is the founder and Director of the Refugee Law Initiative at the School of Advanced Study, University of London. The opinions expressed here are those of the author alone.