Priti Patel ‘misleading’ public by calling Channel crossings illegal after court rules asylum seekers not committing crime

Exclusive: Home secretary and ministers have continued to call crossings ‘illegal’ in parliament despite ruling

Lizzie Dearden
Home Affairs Editor
Sunday 30 January 2022 11:26
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Priti Patel questioned about Court of Appeal ruling on Channel crossings

Priti Patel has been accused of misleading the public by continuing to label all Channel crossings by asylum seekers “illegal” after a court confirmed they were not.

Judges ruled that refugees trying to reach a British port or be intercepted at sea have not committed a crime in December, and this week lawyers representing the home secretary told the High Court a “misunderstanding” about the law had been rectified.

But the government has not publicly acknowledged the cases, as Ms Patel and other ministers continue to label the desperate journeys “illegal” in parliament.

Stuart McDonald, a Scottish National Party (SNP) MP who sits on the Home Affairs Committee, called the situation “very troubling”.

“It’s a misleading way of talking about this issue and totally mischaracterises what is happening,” he told The Independent.

“It is quite a deliberate attempt to dehumanise these people and make the public think worse of them.”

The home secretary, attorney-general Suella Braverman, and ministers Victoria Atkins, Baroness Williams of Trafford, James Heappey and Baroness Goldie have all told parliament Channel crossings by asylum seekers are “illegal” since the Court of Appeal ruled they were not.

Home Office figures show that “almost all” migrants on small boats claim asylum, and the vast majority are granted protection.

Bella Sankey, the director of Detention Action, said: “The home secretary and attorney-general demean their office, and mislead parliament and the public, by falsely claiming those crossing the channel have broken the criminal law.

“That they continue to do so, in defiance of a Court of Appeal judgement, shows once again the disrespect this government has both for the law and for the truth.”

Mr McDonald, who is the SNP’s home affairs spokesperson, questioned the home secretary about the Court of Appeal judgment over the legality of Channel crossings in parliament.

On 17 January, he said: “The home secretary should have pointed out that, unlike the endless Downing Street parties, arriving in the UK to claim asylum is not unlawful, as the Court of Appeal reminded her just last month.”

Ms Patel did not address the point, accusing the SNP of “political gimmicks” and vowing action to stop the exploitation of “people who cross illegally”.

While quashing the convictions of four asylum seekers who had been wrongly jailed for steering dinghies across the Channel, the Court of Appeal said British authorities had adopted a “heresy about the law”.

On 21 December, Lord Justice Edis said: “As the law presently stands, an asylum seeker who merely attempts to arrive at the frontiers of the United Kingdom in order to make a claim is not entering or attempting to enter the country unlawfully.”

The senior judge said that although the government was trying to enable the prosecution of passengers on intercepted dinghies with the Nationality and Borders Bill, such crossings are not currently an offence.

The following day, The Independent asked the Home Office whether it would “stop describing Channel crossings as ‘illegal’ when the Court of Appeal has clearly stated it is wrong”.

The press office refused to answer the question and sent a statement that did not acknowledge the court’s judgment.

During a different court case over an unlawful Home Office policy to seize asylum seekers’ phones, a lawyer representing the home secretary admitted a previous “misunderstanding” over the law.

Addressing the High Court on Thursday, Sir James Eadie QC said: “It appears that for whatever reason there was quite a common misunderstanding that the offence of illegal entry would always be committed [by small boat passengers].”

Lord Justice Edis said evidence showed that “the origin of the error was actually in the Home Office and its agencies”, and Sir James replied: “That may be right, but that position has now been clarified.”

However, Ms Patel and other government ministers have not publicly acknowledged any misinterpretation of the law, or changed their position.

During a House of Lords debate on 5 January, minister Baroness Williams said the government was working to “deter illegal entry” in Channel crossings.

The following day, the attorney-general told the House of Commons: “We need to take tangible action to deal with the problem of illegal migrants crossing our Channel … to get on an illegally manned vessel and to try to break through our borders illegitimately is dangerous, immoral and unlawful.”

In a separate debate on the same day, Afghan resettlement minister Ms Atkins said there were “understandable concerns about illegal migration”.

Then while answering questions on plans to use the Royal Navy in the response to crossings on 18 January, armed forces minister Mr Heappey said the move would “act as a deterrent for those who are in France and are considering making an illegal crossing”.

The next day, defence minister Baroness Goldie told the House of Lords the objective was to “ensure that all vessels transporting illegal migrants across the channel are intercepted”.

The number of migrants crossing the Channel by small boat tripled in 2021 to more than 28,000, despite Ms Patel’s repeated vows to make the route “unviable”, and hundreds more have crossed this month.

British law means that anyone seeking to claim asylum in the UK must be physically present in the country.

There is no asylum visa and campaigners say existing resettlement schemes are insufficient, but the government has rebuffed calls to expand safe and legal routes.

A Home Office spokesperson said: “We are reforming our approach to illegal entry to the UK and asylum to end the overt exploitation of our laws which UK taxpayers are forced to endure.

“In addition, the Nationality and Borders Bill will make illegal arrival a criminal offence and introduce a maximum sentence of life imprisonment for those who facilitate illegal entry into the country.”

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