On 25 August 2022, the Home Office announced plans to fast-track the removal of Albanian nationals “with no right to be in the UK” under plans agreed with the Albanian government (it was said) “to tackle the scourge of small boat crossings”. The fast-track removal scheme appeared to be explicitly aimed at Albanian nationals who make asylum claims having crossed the channel on small boats.

On the same day, the Times reported that: “[f]rom next week Albanians who claim asylum after arriving illegally will have their claims assessed immediately to fast-track their removal.” Those found to have passed through a safe third country would have their asylum claims deemed inadmissible and “put on charter planes to fly them back to the Balkan country”. Home Office sources apparently said that the process would happen “within days” of arrival. Meanwhile, the Daily Mail suggested that Albanian migrants crossing the channel could face checks from Albanian police when they arrived at Dover.

Refugee lawyers were left scratching their heads as to how such a plan could be implemented. The inadmissibility rules allow for removal to a safe third country, not an asylum seeker’s country of origin. The plans would have required a bespoke fast-track asylum process, with asylum claims certified as “clearly unfounded”; a difficult ask given that according to the Home Office’s own statistics 53% of asylum claims succeed.

Care for Calais, instructing Duncan Lewis, sent a pre-action letter challenging the proposed plans, which was met with a terse response by government lawyers (with thanks to Duncan Lewis for sharing). The proposed grounds were said to have no merit because the arrangements with Albania would not apply to asylum seekers. It has been reported that some 90% of Albanian nationals arriving by boat apply for asylum. So if the proposed scheme does not apply to them, it is difficult to see how the plans could realistically be expected to “tackle the scourge of small boat crossings”.

The government lawyers’ response to the pre-action letter helpfully clarifies the Home Office’s understanding of the law on small boat crossings and legal entry to the United Kingdom since the cases of R v Kakaei [2021] EWCA Crim 503 and Bani v The Crown [2021] EWCA Crim 1958. It says:

“Since July 2022… migrants who cross the Channel in small boats who are either rescued or directed to land at designated locations by the authorities are no longer deemed to be illegal entrants, but arriving passengers.”

It is unclear why this has been the government’s understanding since July 2022. Kakaei was handed down in April 2021 and Bani in 21 December 2021. On 28 June 2022 the new offence under section 40 of the Nationality and Borders Act 2022, of knowing arrival in the UK without valid entry clearance, was brought into force. The relevant CPS guidance on immigration offences has been updated to reflect the changes.

This new offence of knowingly arriving in the United Kingdom without entry clearance appears to catch the scenario described in the letter. That is the point of it. Nevertheless, there will be people who crossed the Channel before 28 June 2022 who were wrongly notified that they were illegal entrants; and some may have been wrongly convicted of illegal entry or facilitating illegal entry. For the former cohort, it may be advisable to make a request for the illegal entry notification to be withdrawn, and consider judicial review if the Home Office refuses. For the latter, clients should receive advice on the possibility of an appeal against conviction.

So what of the government’s plans for Channel crossings?

It seems as though the government has no realistic plan for addressing Channel crossings. A replacement for the Dublin scheme has not been pursued. There is a now vast backlog of unresolved asylum cases and the numbers of people removed having been refused asylum has been decreasing. The government refuses to countenance offering safe and legal routes for people to be able to claim asylum, including for asylum seekers arriving in Europe with close family connections in the United Kingdom.

The approach apparently favoured by the former Home Secretary, Priti Patel, has been to seek to publicise outlandish plans, presumably primarily for political purposes but also in the vague hope of deterring people from making the crossings. One such plan was the “pushbacks” policy, which was abandoned days before a full judicial review hearing, with the Home Office agreeing to pay the costs of the claimants’ lawyers as well as bearing its own. The much vaunted Rwanda plan, which foreign office officials strenuously argued against because of human rights concerns, is effectively on hold pending a number of judicial reviews. The High Court is expected to hand down its decision next month but with the likelihood of onward appeals, including to the European Court of Human Rights, and further legal challenges, it is unclear whether and if so when the scheme will receive the clean bill of health it requires to proceed. In any event, the government has produced no credible evidence that it will have the deterrent effect that it desires.

Other supposedly deterrent measures are familiar in this hostile environment. They include GPS tagging; reported plans by the new Home Secretary to expand the immigration detention estate, with Haslar and Campsfield earmarked to be re-opened and expanded; supposed deals with the French authorities to allow immigration officers to be deployed in France; and changes made by the Nationality and Borders Act 2022 to grant refugees arriving by boat and other dangerous routes a downgraded form of immigration status. A shorter initial period of leave to remain would be granted, with a longer period of insecure immigration status before settlement or citizenship is considered. All the while, individuals would have fewer rights.

It is unclear if there are any plans in the pipeline to address or deter Channel crossings that are more practical. For now, it seems the government will continue to face legal challenges with each new policy announced.