The short answer is that we do not know. But it is possible to make some informed guesses. In this post I try to do just that, based on a Twitter thread from a few days ago and some feedback from that.

Evidence on refugee decision-making

The evidence on refugee decision-making is limited. Ascertaining the motives of such a disparate group of people from such a wide range of regions, countries and backgrounds is challenging. Refugees are in no way a homogenous group.

There is some material available, though. There’s an interesting very recent study available on the JCWI website. Sherine El Taraboulsi McCarthy is currently running some research on this subject. There is some slightly older research available on asylum seeker ‘destination preferences‘ by Heaven Crawley and Jessica Hagen-Zanker as well. If you want to go way back, there is even a Home Office research report dating back to 2002.

This evidence tells us that motivations are mixed, chance plays a significant role, agents and smugglers play a significant role, the ‘imagined destination’ plays a significant role and that awareness of the treatment of asylum seekers in countries of destination is limited.

Deterrence does not work

One of the things the evidence consistently tells us is that deterrent policies in countries of destination do not work. A deterrent policy would have to do two things in order to be effective and there is no evidence that either has ever happened before.

First of all, refugees would need to know about the policy in question. There is little evidence to show that they do. Their information sources are informal: friends, families, social media, agents, smugglers, fellow travellers. These are not accurate and reliable sources. Worse, agents and smugglers may actively mislead in order to drum up business. And a lot of it is a matter of perception and imagination, based on a lifetime’s accumulation of limited news sources. The reality is that refugees do not really know what is going to happen to them in the different countries they might reach.

Secondly, if they were to know about it, they would have to care about it. There is also little evidence on this front. It is not hard to imagine why.

We are talking about a group of people who may have crossed deserts, put themselves in small boats, dodged gangs and border guards alike and lived through unimaginable hardships on their journeys. They have sometimes watched friends, family members and fellow travellers die on these journeys. Over 26,000 have drowned trying to cross the Mediterranean since 2014. If they were not deterred by all that, what would they be deterred by?

Further, they are motivated by hope. That is notoriously hard to kill, although Braverman, Sunak and co are certainly doing their best. The reason refugees choose to keep moving is because, against all the evidence, they hope things will get better. Sherine McCarthy talks about “cognitive migration” and the “imagined destination”; refugees feel like things will be better when they get where they are going. Like all of us, they can also be overly optimistic about how they personally will perform in their imagined new environment. “If I can only get there, then I’ll…”

This is not necessarily irrational. If one’s situation is already abysmal, taking even big chances might be worthwhile. Refugees quite literally have nothing to lose, after all.

Is the Illegal Migration Bill different?

The Illegal Migration Bill is certainly draconian in its intent. Maybe word will spread.

Rationally, one might imagine that denying lawful status, including the prospect of ever lawfully working or being joined by family members, might deter at least some people from leaving French shores for British ones. But probably not very many. After all, the existing formal ‘inadmissibility’ procedure has been in place since January 2021 and had no discernible effect. Nor has there been any noticeable impact from the informal policy since 2019 of keeping asylum seekers waiting for years and years for decisions.

If flights to Rwanda do start taking off some time in late 2023 or early 2024 and the government does create big new detention camps to hold all arrivals before they are shipped off there within 28 days of arrival, maybe that might deter some refugees.

If so, they would claim asylum elsewhere. That is the whole British government plan, after all. But the French and the EU might not prove to be terribly happy about that. The United Kingdom already receives far fewer asylum claims than comparable EU countries like France. In 2022, the UK received 85,000 asylum claims, Germany 296,555, France 179,705 and Spain 128,015.

If the Illegal Migration Bill actually works as intended, the disparity would only grow. This may actually reduce the prospects of securing a workable returns deal. The UK government is undercutting the minimum standards of the Common European Asylum System and beginning a race to the bottom of the barrel in the hope of displacing refugees to its neighbours.

In any event, the Illegal Migration Bill is unlikely to deter everyone. What might well happen is that refugees will switch to more clandestine routes and seek to avoid detection by the authorities at all. Instead of claiming asylum, they will then just keep their heads down.

Alternative routes

Small boats get all the attention. It seems unlikely that the government would have introduced the Illegal Migration Bill were it not for the visibility of small boats and the public angst this particular route causes. But there is more than one way to cross the channel.

At the moment, many of those arriving in small boats seem to be aiming to reach British waters and then be rescued. They call attention to themselves once they have passed the half way mark, basically. Instead, we might see small boats seeking to reach British shores without detection. They might actively avoid being rescued, in fact, because rescue would also mean Rwanda. That might still be the case even if they find themselves in distress and taking on water.

I am no expert, but I imagine that trying to make the entire crossing without detection or rescue would be quite a bit more dangerous than before. Some might be deterred by that, I suppose, but the outcome could be fewer refugees trying to make the crossing but more deaths overall.

Or we might see refugees switching back to travel by lorry. This is the ‘traditional’ way to reach the UK. Successive changes, in particular the imposition of heavy fines on haulage companies and drivers and ever increasing levels of security around certain departure points for the UK, have made it very hard to travel by lorry. But it is not impossible, it is just that small boats were easier.

We might see more attempts to use sealed containers, for example. This led to the death by suffocation of 39 Vietnamese migrants in 2019. 58 asylum seekers had died in the same way back in 2000. We might see new, longer routes from further away being used instead to avoid the security measures put in place at key French ports. Or we might see more migrants seeking entry via Ireland and the common travel area, in effect displacing the UK’s issues elsewhere.

Behaviour on arrival

What does seem likely is that any refugees who do arrive in the UK will not be interested in contacting the Home Office to claim asylum. There will be no point, because no asylum claims will ever be considered in future. Or, if the person does come into contact with the authorities and they do claim asylum in order to avoid removal to their home country, there will then be no reason to stay in touch with the Home Office afterwards.

The only incentive would be to remain eligible for £8 per week and a bed in a hotel somewhere. Forever. Or in a disused holiday camp or former military barracks, if the government follows through on those plans.

There would be a risk of removal to Rwanda at some point, perhaps. But one of the quirks of the Illegal Migration Bill is that no-one except Albanians will be removable back to their home country. With that exception, the legislation literally bans the UK government from removing anyone who claims asylum back to their home country. The government is putting all of its eggs in one basket: removal of all asylum seekers (except Albanians) to safe third countries.

Refugees are therefore likely to disappear into the community and try and make their way in the shadow economy. They will be destitute, homeless and at serious risk of merciless exploitation by very bad people. We already see this happening with children supposedly in the Home Office’s so-called ‘care’. Rather than seeking entry from Ireland, some might even flee that way through the common travel area to claim asylum there. The Irish might not be terribly happy about that.

Will more people claim asylum to avoid removal to their own country?

At the moment, the vast majority of people who claim asylum in the United Kingdom are genuine refugees. The Home Office granted asylum in 76% of asylum decisions in 2022, and that is before appeals are taken into account. There is very little abuse of the asylum system, basically. That might change because the Illegal Migration Bill could create a perverse incentive for people to make a false asylum claim in order to avoid removal to their home country.

Under the regime established by the Bill, people from EEA countries and Albania can be removed to their home country. Everyone else cannot be removed to their home country, only a safe third country. So, if you are an overstayer from, say, India or Brazil or anywhere else in the world, if you make an asylum claim you will no longer be removable back to your home country. If the Home Office is managing to remove lots of people to Rwanda, you might well decide you’d prefer to be sent home and not make that asylum claim. But if removal to Rwanda is a remote prospect, making an asylum claim will mean you stay in the UK. The Home Office cannot detain you for very long if there is no prospect of removal; they’ll have to let you go.

If removals to Rwanda prove as difficult as many of us expect, the Illegal Migration Bill might end up looking like a charter for illegal migration.

This may all look like government ‘success’

The diplomatic, moral and social consequences could therefore be calamitous. There could be more deaths. There will inevitably be more destitute, homeless and exploited but unrecognised refugees here in the United Kingdom. The UK’s relationship with our neighbours seems likely to suffer.

But this will, on the face of it, look like success, at least by the government’s key metric of ‘stop the boats’. Because some of those who arrive by boat in future will do so clandestinely and will therefore not show up in government figures. And others will enter by other means, also clandestinely where they can. Many of those who make it into the country without detection will not claim asylum — there will be no reason to any more — so the number of asylum claims will probably fall.

The numbers actually arriving may or may not have fallen. But the numbers of recorded arrivals and recorded asylum claims are likely to fall dramatically. At least, this seems likely if substantial numbers of people are removed to Rwanda. Estimates on the existing size of the unauthorised population in the United Kingdom vary enormously, but the Illegal Migration Bill is likely to cause the numbers to rise.

Finally, let’s just imagine what will happen if removals to Rwanda do start to take place. The Illegal Migration Bill is not likely to have much of a deterrent until this starts to happen. While Braverman has this last weekend been suggesting flights might take off by the summer, this seems impossible given the legal challenges still to come. The earliest it was previously thought a flight might take off is early 2024, assuming the government wins the ongoing court case. The first flight would carry just a handful of unfortunates. Rwanda has limited initial capacity to receive further refugees. Probably just a few hundred, until further provision is made and facilities constructed. This will rapidly be scaled up, as was announced over the weekend.

In the meantime, any asylum seeker who has arrived since 7 March 2023 will never receive an asylum decision and also cannot be removed back to their home country, unless they are Albanian. How many will have arrived in the period between 7 March 2023 and the first Rwanda flight, whenever that might be? We do not know, but it could easily be tens of thousands. Nearly 90,000 arrived over the course of 2022, after all. They will probably be stuck in hotels on £8 support per week. Some will already have decided to disappear into the community. Once flights to Rwanda start taking off, everyone will probably vanish.

New detention camps will presumably be built here in the UK. Any new arrivals will be taken to them. If any of the disappeared asylum seekers who arrived previously are encountered by the police or immigration authorities, whey will presumably also be detained.

They will then be forced onto a flight to Rwanda. This will be a grim, violent affair. It is hard enough removing people to their own country after an exhaustive examination of their asylum claim has concluded they are not a refugee. Removing people to a completely strange country with which they have no links and no shared language or culture and where they will face a bleak future will be a lot harder. The level of resistance to removal is likely to be extreme. There will likely be self harm and people will be seriously hurt in the process.

So, we’ll perhaps see fewer small boats recorded arriving and fewer asylum claims made. But the unauthorised population will grow. And removals will be violent, grim affairs. And our neighbours will be unimpressed and uncooperative.

That is the future the Illegal Migration Bill will bring us.

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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