Can the government really process asylum seekers in a third country?

Sean O’Grady examines whether Home Office proposal to house migrants in a separate nation is legally sound

The government is edging closer to a policy of housing migrants in another country (PA)

For some months now, reports, leaks and rumours have emerged from the Home Office that ministers are toying with the idea of sending asylum seekers to “third countries” for processing. Until now, such reports, leaks and rumours were downplayed, presumably because they were not yet policy, the details hadn’t been thought through, and because some may have been alarmed at civil servants trying to prevent these unusual schemes from happening.

Now, though, they seem to be edging closer to firm policy. The Home Office briefed overnight about such a plan, involving countries such as Albania and Rwanda, and the justice secretary has confirmed that it is now much more than official spitballing: “We will work with all our partners – and it’s not just one country, we’ve looked at the Australian experience, we’ve been talking with the Danes about this and we want to make sure the processing, if it’s possible – and that will depend on the goodwill and co-operation of partners – can be done elsewhere.” He drew back from naming the prospective new bases, but did not deny that Albania and Rwanda were being considered.

Although expensive, impractical and ineffective, the policy does have some logic behind it, if only from the point of view on ministers frustrated at their failure to stem the flow of migrants across the English Channel, which is running at around 1,000 per day on the official statistics, with a further, unknown number arriving even less formally, with no Border Force or RNLI escort.

From a ministerial point of view, the present policy is failing. The French are being paid to patrol their borders and prevent the crossings, but are obviously unable to completely seal off the long coast of northern France (critics say they do not try very hard).

Second, the British government has rightly come under fire for housing some migrants – refugees, economic migrants or otherwise – in unsafe and insanitary conditions. They’ve also been attacked from the right for offering “four star hotels” and £38 a week in spending money. Either way, the system is finding it difficult to cope with the volumes.

Third, further down the line, asylum cases are taking a long time to clear, which is a long and unhappy tradition dating back to the Major government. Ms Patel calls the system “dysfunctional”.

Fourth, ministers don’t have much other option. They cannot turn migrants back or refuse to rescue them, and taking them back to France is not possible under international law. Outside the EU, ironically, the UK is in a weaker position to control its borders. It is no longer party to the Dublin III accord that allowed failed asylum seekers to be sent back to France. Article 98 of the United Nations Convention on the Law of the Sea 1982 requires the UK government to ensure assistance is given to those in danger at sea. The 1951 European Convention on Human Rights (nothing to do with the EU or its declaration of human rights), sets down an absolute right to claim asylum, though not of course to grant it. So that might allow processing in third countries, but not a summary policy to send them elsewhere.

Unlike the situation between Australia and Indonesia, there are no international waters in the narrow English Channel where migrants can be dropped. And the French have a right to patrol and rescue entry to their territorial waters, even if the royal navy turns up.

The government believes that sending migrants far away from the UK will make them less likely to want to cross the Channel, and break the business model of the people traffickers.

Nonetheless, the Albania/Rwanda plan would be prey to some of the current system’s weakness. It would require the construction of large camps, which, in the case the Australian examples in Cambodia and Papua New Guinea, soon became lawless, inhumane and dangerous. These would be expensive to run and to organise.

If the flow of migrants is largely made up of refugees, then the government is still obliged to offer them safe haven in the UK – they cannot be set free in Rwanda or Albania. So the practical difference would be to add the cost of transportation and processing to the existing cost base. Some say the cost of the Rwanda/Albania plan would run to £100,000 per migrant, or £100m per day at the present rate of channel crossings (assuming no deterrent effect).

Given that most migrants want to work, and there’s a shortage of labour in key sectors, an economist might advise that they be allowed to settle and given at least temporary work permits.

Nor does the prospective new policy do anything about the “push factors” driving refugees to the UK, and indeed trying to get across the Mediterranean and the border from Belarus.

It is no coincidence that so many have come from Kurdistan, Iraq, Syria and west and northwest Africa, because these are where the conflicts are. They were not travelling before the wars in their homelands, not even for the UK’s supposedly lavish social security benefits. Ms Patel has pledged to get the flow across the channel – which are not strictly speaking “illegal” if they are en route to plead asylum – to zero. So long as there is trouble in the world, that looks like an unachievable goal.