Is Priti Patel’s ‘pushback’ policy to stop boats crossing the Channel legal?

John Rentoul explains why unauthorised boats cannot simply be turned back

Priti Patel, the home secretary, has to talk to the French government (PA)

When Priti Patel, the home secretary, announced plans to push back boats in the Channel, many observers including The Independent said it would not work. As we reported last week, this has turned out to be the case, as Border Forces have narrowed the circumstances in which the policy could be applied to conditions unlikely to be met in practice. These include a willingness of French vessels on the other side of the sea border to receive the boats that are being turned back, which French authorities say they are not prepared to do.

It is beginning to look as if the push-back policy was yet another unworkable device designed to gain headlines rather than to solve the problem. It joins the embarrassment of suggestions from the Home Office of using wave machines or offshore processing centres on Ascension and St Helena, which may be intended to suggest that the government is trying to deal with the issue but succeed mainly in drawing attention to its lack of grip.

This may seem odd because, at first sight, any country ought to be able to prevent people from arriving without going through formal immigration checks. But applying fair rules is difficult in practice, as can be seen at land borders such as Poland’s with Belarus and that of the US with Mexico, and even more difficult with sea borders such as those of Italy, Greece and the UK. In these cases, the humanitarian problem is more acute, as all nations have a responsibility to prevent drowning, while desperate people are driven to take to the sea in dangerous boats.

As we reported, the UN Convention on the Law of the Sea allows countries to prevent passage to prohibit smuggling, or breaching immigration rules, “but any return of a vessel to a state’s territorial waters would require that state’s consent”. Without French cooperation, that makes legal return impossible in practice.

There are probably only two ways in which Ms Patel can solve this problem. One is to secure the cooperation of the French government in making it hard for small boats to set off in the first place. The other is to make our asylum system so unattractive that people think it is not worth the attempt.

It would seem that the crude policy of the British government paying the French to police their own coastline is not working well. The recent difficulties in the relationship between the two countries have not helped. Ms Patel’s attempts to engage with the French government have been hampered by posturing on both sides, with the home secretary threatening to withhold money while the French appear to be impassively unhelpful.

This makes the intensive dialogue with the French government that would be needed seem like a remote prospect. The British long ago took over responsibility for border security on the French side of the Channel tunnel, but to extend that principle to the entire north French coast would obviously be a significant intrusion on France’s sovereignty.

The only other way to deter the boats would, on the other hand, run into more legal problems. If people thought they were likely to be detained and removed from the UK, they might be less likely to attempt the crossing, but it is difficult for the Home Office to achieve such certainty under existing domestic and international law.

At the moment, the UK authorities have the power to detain irregular arrivals “to establish a person’s identity or basis of claim”, but detention may continue only if there is a “realistic prospect of removal within a reasonable timeframe”. Even if the asylum application process could be speeded up significantly, a high proportion of applicants are either successful or granted leave to remain.

Workable asylum policies that command the confidence of domestic electorates are hard, as Joe Biden and other leaders are discovering around the world, but that is no excuse for resorting to gimmicks or headline-grabbing policies that fall foul of the law.