Suella Braverman is planning tougher action on migrants who claim they are modern slavery victims after admitting that Channel crossings are “out of control”.
On Tuesday, the Home Secretary will foreshadow plans to make it harder for migrants to claim they are victims of trafficking by requiring them to provide hard evidence to support their initial case and to bar late or last-minute applications to avoid being deported.
It is expected to be part of a package of measures to reform Theresa May’s Modern Slavery Act, which Ms Braverman said is being abused by migrants, mostly from Albania, because the threshold for being classed as a victim has been set too low.
It could also include a one-stop shop so that alleged victims can make a claim only once to prevent the “merry-go-round” of late and last-minute trafficking claims that have prevented the deportation of illegal migrants and foreign criminals.
Ms Braverman is also looking to reform the law so ministers can ignore European judges using injunctions – Rule 39 decisions – which was used to block the first flight to Rwanda and resulted in UK courts following suit. Ministers said that the injunctions are technically outside European law and were never intended to be binding.
A record 32,800 migrants have so far crossed the Channel into the UK on small boats this year, with up to 60 per cent now said to be Albanians. Ms Braverman told The Sun on Sunday that the problem was “out of control” and cited a “variety of reasons”, including abuse of modern slavery laws.
She said: “Now what we are seeing is a majority of people coming here from Albania – some 80 per cent – who are coming across on small boats are claiming to be victims of modern slavery. That’s regardless of the fact that they may have paid tens of thousands of pounds for the privilege of being a so-called modern slave.”
Modern slavery claims have increased five-fold from 3,000 to 15,000, of which Albanians are the largest group. This summer, Chris Philp, who was immigration minister at the time, said that “vaguely plausible-sounding claims with no supporting evidence whatsoever are now simply accepted”.
Proposals, which it is understood he submitted to Liz Truss, included requiring “hard corroborating evidence” before allowing a claim, barring a claim where a migrant previously said they were not a victim and drawing a “strong adverse inference” where they have had ample earlier chances to make a claim but had not done so.
Ms Braverman said: “We are getting instances where convicted paedophiles, drug dealers, murderers, who served their sentences in English jails – at the end of their sentence, we want to deport them because they are considered to be foreign national offenders. What do they do? They claim ‘modern slavery’.”
Ministers are concerned that judges at the European Court of Human Rights could use Rule 39 injunctions to repeatedly block any attempt by Westminster to revive deportation flights of migrants to Rwanda to claim asylum in the African state.
The Home Secretary said that the deportations were “thwarted because, frankly, of an interventionist politicised court in Strasbourg”.
She added: “And a decision taken… where there was no UK representation, behind closed doors, and in a very mysterious way, frankly. We really need to review and look at our relationship with Strasbourg.”
Ms Braverman confirmed that she intends to bring down overall immigration even as Britain pushes for growth, as revealed last week by The Telegraph.
Tony Smith, a former director general of the Border Force, warned that illegal migrants are making a mockery of UK border controls after a judicial ruling that they have to be treated as “arriving passengers”.
Writing for The Telegraph, below, he said the judgment had caused “mayhem” for the Border Force who were no longer sure they had a lawful right to arrest and detain them as they were no longer deemed “illegal migrants”.
Illegal migrants are not ‘arriving passengers’ – our border controls must reflect that
By Tony Smith, a former director general of the Border Force and author of Changing Borders: A Kingdom Unlocked
The recent ruling to treat people arriving by small boats as “passengers” rather than “illegal entrants” is yet another example of the progressive weakening of effective UK border controls by successive court judgments, notwithstanding the clear wishes and intentions of the elected government to strengthen them. Not to mention the mayhem this has caused for officers on the front line.
When I was an immigration officer in the Seventies, any passenger who arrived at a port without a valid passport (and visa if they needed one) was automatically refused entry and sent back on the same aircraft (or ferry) that they arrived on. Anyone who tried to enter by any other means was deemed to be an “illegal entrant”.
The Immigration Act 1971 empowered us to arrest and detain illegal entrants, and to return them whence they came. There was no need to obtain permission from a source or transit country to do so.
A letter from a UK chief immigration officer to his counterpart overseas – and a direction to the captain of a ship or aircraft – was enough. Indeed, successive court judgments in the Eighties extended the concept of “illegal entry” to those who did, in fact, arrive at approved ports of entry as “passengers”, but without the correct documents. And even to those who were properly documented but had employed material deception to gain entry.
In those days, nobody claimed that they were exempt from removal under the 1951 Refugee Convention, or the 1951 Convention on Human Rights (both of which had been signed 20 years earlier, in the wake of the Second World War).
Immigrations laws go down a slippery slope
However, it became clear over time that those who were able to get to the UK by fair means or foul could in fact get in – at least temporarily – by claiming asylum on arrival. The adjudication process shifted from the immigration officer at the border to a caseworker at the Home Office, and removal was “deferred” while the application was considered. Backlogs grew. A vast legal industry and bureaucracy emerged around asylum casework, which subsequently extended into human rights.
In order to manage numbers, UK immigration laws have been progressively strengthened by a series of measures (by governments of different colours) specifically designed to prevent inadequately documented passengers from arriving at the UK border without proper documents.
This started with the imposition of visa regimes on more countries; and continued with measures to require airlines to check passports and visas before allowing passengers on board (upon pain of a fine if they failed to do so). New laws required hauliers to check their lorries for penetration by illegal entrants, also under financial penalty for failure to do so.
Following the record influx of more than 100,000 asylum seekers in 2001, the Government came to an agreement with France to post immigration officers to French ports to check documents prior to boarding ferries and trains bound for the UK.
The UK enjoys significant geographical advantages over many other countries in setting up its border controls. Leaving aside Ireland (which is another story), we have no land borders. Unlike many other countries, we have hitherto been able to exert our immigration controls on planes, boats, and trains so that “passengers” must present a valid entitlement to enter before they can travel here.
Those that tried to avoid this process – by hiding in a lorry or coming on an “illegal journey” by small boat or aircraft – were automatically entering (or seeking to enter) illegally. As such, they were liable to arrest, detention and removal by our officers.
All these measures have now been undermined by migrants avoiding traditional passenger routes altogether but instead taking to small boats, where no penalty can be imposed against those bringing them here (save in the rare case that a facilitator can be identified and prosecuted).
Even then, if the facilitator (usually commissioned and paid by an organised crime group) can say that his “intention” was to head to a port of entry to enable his “passengers” to claim asylum there, then he can argue that they are not illegal entrants at all. Therefore, he cannot be prosecuted for the offence of facilitating illegal entry.
Which, it seems, the courts have accepted. In their view, illegal entry occurs only where the intention is to bring people ashore undetected, with no intention to claim asylum.
If Border Force officers are now being invited to interview the pilots of small boats in order to determine what their “intention” is, then the facilitator will, of course, take the last path of resistance and say that everyone on board is an “asylum seeker”; and they are simply trying to get to a UK port of entry so their “passengers” can claim asylum. And all the “passengers” on board can say that they are not “illegal entrants” at all. And if they are not “illegal entrants”, then where is the authority of our officers to arrest, search and detain them at all? Which, surely, cannot be the intention of the legislators?
Radical approach necessary to control borders
So, what is the Government doing about it? Well, it passed the Nationality and Borders Act 2022. This was fiercely opposed by lawyers during its passage, on the grounds that it was incompatible with immigration law, would damage access to justice, and would negatively impact the role of lawyers in immigration cases.
The measures in the Act are, indeed, radical. They challenge the principle that anyone who can get here by any means possible must automatically be admitted to our asylum system. They say that Article 31 of the 1951 Refugee Convention does not apply to refugees for those arriving by “unsafe and illegal” routes from France because they are not coming from a country where their life or freedom is threatened.
In fact, the Act goes further still and enables asylum seekers arriving on such routes to be sent to another third country where they may seek protection (for instance, Rwanda), rather than here.
The clear intention behind this legislation is to empower the Border Force to arrest, detain and remove from the country those persons circumventing UK border controls in this way. Yet the Government has thus far been either unwilling or unable to implement it because of an inevitable judicial review and subsequent intervention by the courts to declare this new law “illegal” and incompatible with the 1951 Refugee Convention and the 1951 Convention on Human Rights.
Meanwhile, if we are to continue to allow people smugglers to recruit migrants on social media from any country in the world – and allow them to bring them in small boats to the UK as “passengers” with impunity so that they claim asylum, regardless of the merits of the claim – then we really have lost control of our borders.