Priti Patel’s plans for Channel ‘pushbacks’ will breach law and put lives at risk, experts warn

Lawyers question legal basis for ‘extremely dangerous’ practice of forcibly turning small boats around

May Bulman
Social Affairs Correspondent
Thursday 09 September 2021 12:50 BST

Priti Patel’s plans to sanction “pushbacks” in the English Channel are illegal and will put lives at risk, experts have warned.

The home secretary is understood to have ordered officials to rewrite the UK’s interpretation of maritime laws to allow Border Force to turn small boats around, forcing them to be dealt with by the French authorities.

Members of Border Force are being given special training to handle migrant boats, but would only deploy the “pushback” tactics when deemed practical and safe to do so, according to several reports.

Pushbacks have been widely condemned when carried out elsewhere in Europe, with the UNHCR calling for a “halt” to the practice earlier this year, branding it “simply illegal”.

Following reports that the Home Office is preparing to start the practice, lawyers have warned that it would breach maritime law and questioned the legal basis the home secretary is relying on to push it through – particularly given that the French authorities have not agreed to it.

Sonia Lenegan, legal director of the Immigration Law Practitioners’ Association, said there were “many issues” with the proposal, to the extent that it was “very difficult to believe that the home secretary has received legal advice stating that the proposed pushbacks are legal in any circumstances”.

“Given France has unequivocally stated that they do not support the proposal around interventions at sea, it is unclear what the plan would be once Border Force reach French waters,” she said.

“Further, these pushbacks are extremely dangerous and will put lives at risk, so it is difficult to see how the proposals align with the UK’s search and rescue obligations under international law.”

James Turner QC, barrister and arbitrator specialising in cross-border commercial and shipping disputes, agreed that turning back migrant boats in the middle of the Channel would “not be lawful under international law”.

He cited legislation stating that rescued people must be “treated humanely and delivered to a place of safety”, and that there is “no requirement that an asylum seeker request asylum in the first safe country in which they arrive”.

It comes following a G7 interior minister’s meeting on Wednesday, during which Ms Patel told her French counterpart Gerald Darmanin that the British public “expect to see results” from French efforts to prevent crossings.

But the French government warned ahead of the meeting that the newly reported turnaround tactics would have “a negative impact on our co-operation”, branding it “simply illegal”.

In a letter seen by The Independent, Mr Darmanin told Ms Patel: “Safeguarding human lives at sea takes priority over considerations of nationality, status and migratory policy, out of strict respect for the international maritime law governing search and rescue at sea.”

On Thursday morning, Mr Darmanin tweeted: “France will not accept any practice contrary to the law of the sea, nor any financial blackmail. Great Britain’s commitment must be kept. I made it clear to my counterpart Priti Patel.

“The friendship between our two countries deserves better than postures which harm cooperation between our services.”

Immigration barrister Colin Yeo said the fact that the French were not willing to cooperate raised further questions about the plan.

“What does ‘turn around’ mean? Towing a small boat back out to sea with insufficient fuel to resume its journey to the UK? It is obvious how dangerous that is for the passengers. They may well die,” he said.

Steve Valdez-Symonds, Amnesty International UK’s refugee and migrant rights director, described the pushback plan as “senseless, dangerous and almost certainly unlawful”.

“Intercepting vessels in the Channel is incredibly high-risk and to push people back will endanger their lives which is totally at odds with the legal duty of rescue at sea,” he said.

“People have every right to seek asylum in the UK, and they only make dangerous journeys and rely on smugglers because there are no safe alternatives made available to them.”

Channel Rescue coordinator Steven, who did not want his full name used for fear of death threats, said Ms Patel’s plans were in “dire contravention of maritime law”.

He added: “International maritime law stipulates that ships have a clear duty to assist people in distress and who could be at risk of losing their lives, and they must be rescued.

“The authorisation of pushbacks means that the lives of thousands of innocent women, children and men have been put at greater risk.

“Instead of trying to stop people arriving in the UK, the government needs to invest in sustainable long-term solutions around safe and legal routes for those for those wishing to seek sanctuary in Britain.”

Steven refuted claims that the policy would act as a “deterrent” to asylum seekers wishing to seek sanctuary in the UK, adding: “Pushbacks and deterrent tactics have not worked in the Mediterranean – if people are desperate, they will do desperate things.

“If this is a policy announcement to make it sound tough but nothing will change in terms of Border Force practice, that’s one thing, but if we see them Border Force acting aggressively at sea, then that is disturbing to us.”

The Home Office said Ms Patel made clear in her meeting with Mr Darmanian on Wednesday that delivering results and stopping crossings were an “absolute priority” for the British people, and that tackling the scourge of illegal migration and organised criminal networks was a “joint challenge that neither country can tackle alone”.

Tim Loughton, a Conservative MP and member of the home affairs select committee, poured cold water on the prospects of the pushback tactic being used in practice.

“It sounds good. But I’m afraid in practice it’s just not going to happen. These are flimsy boats coming over. Even those that are tougher are completely weighed down,” he told Radio 4’s Today Programme on Thursday morning.

“Any boat coming up alongside at speed would capsize most of these boats anyway and then we’re looking at people getting into trouble in the water and drowning … and then we’ll get blamed for that. It sounds good pushing them back but it’s not going to work in practice.”

Lucy Moreton, professional officer at the Immigration Services Union, echoed his remarks, saying she would be “very surprised” if the practice ends up being used at all - calling it “dead in the water”.

She said: “There are understandably a lot of constraints around it, and you cannot do this with a vessel which is in any way vulnerable.

“But more importantly, you also need the consent of the French to do it. Because as you turn the vessel back towards France, when it crosses the median line it has to be intercepted and rescued by the French, and it appears the French will simply not engage in this.”

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