The government claims that refugees should use ‘safe and legal routes’ to come to the UK. This forms a crucial part of its rhetorical defence for the recently-introduced Illegal Migration Bill because the Bill will deny refugee protection in the UK to any who arrive by irregular routes, including crossing the Channel in unsafe small boats if they do not come directly from a country where they fear persecution. This is likely to be as impractical as it is illegal.

This post is the third in a four-part series on the Illegal Migration Bill, ahead of the third reading in the House of Commons next week, on 26 April. You can read the first post on the potential breaches to the Refugee Convention here, and the second on whether the bill will help force refugees into illegality and danger here. And the last post, to be published shortly, will look at whether the government has alternative options to the Bill.

Part One: How does the Illegal Migration Bill breach the Refugee Convention?
Part Two: Illegal Migration Bill: helping force refugees into illegality and danger
Part Three: Could ‘safe and legal routes’ stop the boats?
Part Four: If the Illegal Migration Bill is unworkable, what can the government do instead?

The Bill does not actually create any ‘safe and legal routes’. In fact, it requires the government to cap the annual number of refugees who might be admitted via these routes. But what are ‘safe and legal’ routes for refugees?

The Bill does not clarify the term but the concept implies a route by which refugees will lawfully be able to enter the country and stay here. Currently, the UK has two main routes that might qualify. There are the bespoke schemes for people fleeing Hong Kong, Ukraine and Afghanistan. They are open only to those nationalities and, crucially, the beneficiaries are not treated as refugees. Then there are the third country resettlements of refugees with protection needs in their current country of asylum, usually selected through referrals from the UN refugee agency, UNHCR. These schemes tend to resettle only around 750 people a year and, again, from particular countries such as Syria.

These schemes are not required under the Refugee Convention. As such, the UK shows generosity of spirit in operating them. But they are also not a viable replacement for granting asylum to refugees who arrive here spontaneously. This is because they are limited to a small number of nationalities whereas refugees flee persecution and war come from a much wider range of countries. And given the limited scope of these schemes, refugees will keep arriving here spontaneously to seek sanctuary. Denying them that possibility will not stop the arrivals; it is more likely to drive refugees into deeper and more dangerous kinds of illegality en route to the UK and after their arrival here.

So might new ‘safe and legal routes’ work to stop the boats?

I pose the question in relation to the small boats issue, as it has become most acute for the government in this spectrum. Even so, it is important to recognise the role of earlier government policy in the UK and other countries in forcing refugees to travel by routes that are irregular and, increasingly, unsafe. Refugees fleeing their country are a fact of life, a natural human response to war and persecution. The small boats crossing the Channel, as I explain elsewhere, are a long-term consequence of governments such as the UK shutting down safe and legal routes for refugee arrivals and forcing them to onto irregular and dangerous routes.

Creating new ‘safe and legal routes’ might pursue one (or more) of several approaches. The first would be simply to lift visa requirements for refugee-producing countries. In principle, this would allow refugees to travel by plane or boat directly from their country or a neighbouring one in a safe and legal manner. However, allowing a wide class of migrants from these countries to come to the UK for a range of reasons other than asylum (and possibly work or stay illegally) is unlikely to be palatable to the government, especially if the UK were the only country unilaterally to do so. The idea of a global agreement to waive visa restrictions in all countries is currently far-fetched.

An alternative would be to create a visa for putative refugees to travel to the UK. Determination of their need for asylum would take place prior to departure; with only those recognised as needing protection granted a visa. Applications could be filed at the nearest British embassy, consulate or high commission in the country or (for those at urgent risk) in a neighbouring country. The cost of the journey would go to the government in visa processing fees rather than to smugglers. This is an intriguing option and some countries, such as Spain, have created such procedures. It is possible, unless other countries followed suit, that the UK might receive a large number of applications.

A third approach is that the UK could vastly expand its resettlement quota for refugees. However, resettlement schemes are open to refugees who are settled already in another country of first asylum. They are resettled on the basis of risks in that country; and most never intended to travel to the UK. As such, it is not clear how much this group of refugees overlaps with those who flee directly (albeit by sometimes circuitous routes) to the UK to seek sanctuary. In other words, whilst upscaling resettlement programmes for vulnerable refugees is to be encouraged, it is not clear that this would address the issue of movement by other refugees towards the UK along irregular and unsafe routes.

A different approach would be to address irregular movement not from its starting point but only in the last part of the journey to the UK. For example, might a centre to receive and process asylum applications by third country nationals be established in France? This is not so different from the asylum visa proposal. But it would be accessible only in one country, as the place from where the irregular unsafe journeys by small boat directly into the UK are launched. It would thus be open to only a much smaller proportion of refugees globally, i.e. those who are passing through France. It might therefore make sense, as a special case, to target it and create specific procedures there.

Clearly, the French government would need to consent. But this scheme could benefit France by removing a bone of UK-France contention, targeting the business model of the smuggling gangs on its shores, and offering a solution to the eyesore of the Calais ‘jungle’. The UK could even offer a financial incentive to France.

It is unlikely that the scheme would act as a magnet, certainly no more than the current small boats situation. In Europe (or even France), only a small proportion of refugees seek to travel onwards to the UK. Fingerprinting would ensure that those found not to be refugees in France could not apply for asylum if they later turned up here irregularly.

As a way to ‘stop the boats’, the creation of new ‘safe and legal routes’ for refugees thus presents a real-world choice between imperfect outcomes. Certainly, the more pragmatic options are unlikely to remove the need for some refugees to arrive by irregular means or routes; and none will dispense with the need for a functioning system of territorial asylum in the UK. This is the reality of refugee movements. But it is not only refugees on the boats. For others who come in order to fill shortfalls in seasonal workers in the UK, the government might equally consider creating ‘safe and legal routes’ in the form of lawful temporary or circular migration schemes. It would benefit the UK also by giving hardworking people a welcome alternative to paying vast sums to criminal smuggling gangs.

Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.

Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.

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