Our Brexit deal is the reason Channel crossings are out of control

The Dublin Regulation meant that anyone who had set foot in another EU country first could be returned to that country, but this law no longer stands. Those who make the crossing know it will be difficult for Britain to return them to France

One of the biggest issues concerning the government is what to do about asylum seekers crossing the English Channel. About 8,460 made the crossing in 2020, but more than 23,000 have done so this year. The government has undoubtedly been taken by surprise and didn’t anticipate such a major spike in crossings.

These journeys are perilous. Last Wednesday saw the deadliest tragedy yet, as 27 drowned while making the crossing, including several children.

In response, former government ministers have accused the home secretary Priti Patel of “making it up as she goes along”, as she seems to have neither a workable plan to reduce numbers nor any explanation for why crossings are at record levels on her watch.

So far, the ideas offered are nonsense, unlawful, or both. One idea was to process all asylum seekers in Albania at an estimated cost of £100k each. However, the Albanian ambassador said this would never happen as it’s “against international law”. Earlier, there had been talk of suggestions that processing might happen elsewhere, for instance in Gibraltar or Rwanda, but the government said the reports were “groundless speculation”.

A second idea is to push refugees back, putting those in sinking rafts, including women and children, in grave danger. This has been branded “inhumane” and “unconscionable” by Labour, but it is also a breach of the Merchant Shipping (Safety of Navigation) Regulations 2020, which require the rescue of those in distress at sea.

For her part, Patel has spent most of her energy pointing fingers rather than solving problems. She has blamed open borders, even though there have been post-Covid restrictions in place; and the French authorities for not doing more, even though the UK was reportedly in arrears with regard to financially supporting such efforts. No doubt more can and should be done on the French coast.

Yet none of this explains why now; why so many more people are crossing the English Channel since 2019 than ever before. It is not because the water is warmer, or the waves less rough; it’s not that there is less Channel traffic, or that better rafts are being used. The one big thing that has happened, and that may play a key role in explaining the increase, is the prime minister’s Brexit deal.

The relevant problem with Brexit is that, in exiting the European Union, the UK left what was arguably one of the most popular immigration policies among the British public: the Dublin III Regulation. This is an EU agreement among member states that if anyone sets foot in another EU country first, they can be returned to that country. Under the Dublin Regulation, anyone found leaving French shores to come to England could be returned as per this agreement.

The issue now is that leaving the European Union has meant leaving the Dublin Regulation. The government was repeatedly asked by Labour during the Brexit negotiations whether the Dublin Regulation membership would be part of any deal; in essence, the government either forgot or did not take it seriously, leaving any mention of it out of the final deal – and nothing to replace it.

This matters, because the regulatory change will have been noticed. It means that, since the prime minister’s “oven-ready deal” was accepted despite having no provision for dealing with Dublin Regulation cases, anyone travelling post-Brexit to Britain will arrive without the rule in place that means they can be returned to another country in the EU. What is worse is that the government has failed to create any extradition treaties to address this matter, and so faces extra hurdles in trying to enforce returns. This has contributed to the UK’s enforced returns being at a record low.

So, despite the tough-sounding rhetoric of processing individuals abroad, which other countries have rejected or resisted on the grounds that it is unlawful, the government has no grip on how this situation came into being in the first place.

Now, those who make the crossing know it will be difficult to return them to France. Plus, with the Home Office taking longer and longer to process and assess applications, arrivals also know they will be unlikely to be going anywhere soon, and will be able to reside in the UK for months or even years as their applications are slowly considered.

It was a clear failure of Brexit talks to omit the inclusion of the Dublin Regulation or some other alternative in its place, just as it is a failure of caseload management that the Home Office is understaffed and under-resourced.

Frankly, if Patel is looking for someone to blame, she should look in the mirror – when standing next to the prime minister. Their shortsighted handling of negotiations has led us to where we are today. They did not “take back control”, but gave it up in a rush. Until they learn lessons and correct their oversight, things may get much worse for them.

Thom Brooks is a professor of law and government at Durham University