The Nationality and Borders Bill: Benefitting people smugglers at the expense of refugees
Published: 16 December 2021
The Nationality and Borders bill also aims to introduce tougher sentences for people smugglers with the aim of discouraging people-smugglers from engaging in the activity. In this blog Savan Qadir explores how this change will likely have unintended negative consequences and force people to take more risks.
Blog by Savan Qadir
On Thursday the 9th of December, the Nationality and Borders bill passed its third reading in the House of Commons. The Nationality and Borders bill that Patel introduced in July 2021 aims to stop the criminal gangs those who smuggle people to the UK via irregular routes. In particular, the bill aims to stop irregular channel crossings from occurring, which have risen sharply since 2019. The passing of the bill follows months of debate and criticism. The Home Secretary, Priti Patel, for example debated the new plan for the immigration system at the Justice and Home affairs’ hearing on the 27th of October 2021. In addition to the need to stop smugglers, Patel emphasized the need to stop those who “elbow” others aside by paying people smugglers to come to the UK. However, in this blog post I will argue that the Nationality and Borders bill will not significantly impact the people smugglers business models. The bill will instead make the people smugglers’ business more profitable. I will also argue the bill will push people into attempting more dangerous routes, which will result in the demand for the people smugglers to increase.
By proclaiming those who arrive in the UK to be ‘economic migrants’, the government is misrepresenting people arriving in the UK by irregular routes. Patel has insisted that 70% of those who came to the UK via irregular routes are single male economic migrants and are therefore not genuine asylum seekers. However, there is no evidence to support Patel’s claim, and there is also no evidence to suggest that those who can afford to pay people smugglers are not vulnerable. But we do have evidence that almost 70% of those who come to the UK are likely to be vulnerable people. According to the Refugee Council , two thirds of those entered the UK via irregular routes have lodged asylum claims and have been successful, accounting for appeals. In addition according to the Migration Observatory at the University of Oxford , “a majority of asylum claims (including those of people who arrived in the UK by small boat) are ultimately successful” and according to the Home Office’s own immigration figures between year 2017-2019 almost 59% of those who claimed asylum in the UK were successful in their claim. The Home Secretary was asked on the 17th of November 2021, to correct the record by several members of the House of Commons, but she refused to do so. It is also worth mentioning that asylum seekers are not allowed to work nor take any paid jobs while waiting for the Home Office to make a decision on their cases. The waiting time is on average between 6 months to a year – thought it can be even longer. Therefore, claiming that they are economic migrants makes little sense given that there is no economic opportunity for them as they are legally not allowed to work or make any money for a significant period of time:
The current government position is that, generally, asylum seekers are not allowed to work. They can only apply for permission to work if:
- they have waited over 12 months for an initial decision on their asylum claim or for a response to a further submission for asylum; and
- they are not considered responsible for the delay in decision-making.
It is therefore incorrect to simply label those arriving in the UK to claim asylum, whether by boat in the Channel or otherwise, as being ‘illegal’ economic migrants.
The Nationality and Borders bill also aims to introduce tougher sentences for people smugglers, from a previous maximum of 50 years in prison to life in prison, with the aim of discouraging people-smugglers from engaging in the activity. However, the likely effect of this change is that people-smugglers will charge people more because they will be forced to take more risks.  As a result of this risk, traveling to the UK through irregular means would become more expensive, rather than impossible. Indeed, the position of the Joint Council of the Welfare of Migrants is that people smugglers are the only people who will be celebrating this bill because they will charge more to vulnerable people, and more people will be needing them in order to get to the UK. These arguments are supported by research in multiple border regions. According to a study in 2007 by Cornelius, and Salehyan on the border between US-Mexico, for example, tightening borders and increase surveillance will not deter illegal entry nor stopping people smugglers from smuggling people to the country. The study showed how South American migrants were forced into taking more dangerous routes to enter the US. As a result, between 1996 to 2006 there were more than 4,065 known migrants’ fatalities – mostly caused by dehydration and hypothermia as routes became longer and more dangerous. Second, although the use of people smugglers was widespread in the 1980s, the use of professional people smugglers rose in 1993. ‘Coyotes’ were used to pick up migrants because of the difficult routes, the people smugglers were started issuing more fraudulent documents, and most importantly the people smugglers were tripling their fee for their service. The strategy in the Nationality and Borders bill is pretty similar to what USA has tried years ago which, according to the study above, failed to deter either illegal entry or stop people smugglers from their facilitation.
Imposing tougher restrictions on one type of border crossing may decrease numbers of crossing on those routes, but it will increase the number of crossings through other channels. This is clear in the case study of the US / Mexico border but also for sea borders. According to a study by UNHCR, for example, the number of land crossing between Turkey and Greece for the year 2012 were 30,438. After 2012, Greece increased its border patrol by 1881 officers to police the land crossing between Turkey and Greece and built a border fence along the land border with Turkey. As a result, the number of land crossings for the year 2014 decreased dramatically to only 1,903. However, the number of sea crossing increased from 3,646 in 2012 to 43,518 in 2014 (see Figure 1) . The effect of these bordering efforts in terms of total crossings was non-existent, yet it forced people into attempting riskier journeys. Indeed, the UNHCR the report stated that there were “more deaths at sea in the Mediterranean recorded in 2016 than ever before. 5,096 refugees and migrants were reported dead or missing at sea last year” and according to the UNHCR as a result of there being no safe route “people continued to move but undertook more diversified and dangerous journeys, often relying on smugglers because of the lack of accessible legal ways to Europe.”
Figure 1 shows how the shift of route occurred after tougher restrictions were used on the border between Greece and Turkey.
Patel understands these policies are unlikely to deter illegal entry. For example, she admitted in the Justice and Home Affairs Committee hearing that “when you are trying to clamp down in one area, you see displacement elsewhere” and she also said, “we are all grown enough to understand that.”  It is clear from the Greek example that, when you restrict access to routes, there will be an increase of usage of other routes. At the same hearing Patel also stated that “part of the issue [is that] we see the number of channel crossings has increased from the end of 2019-2021, this is because the other routes like lorries and flights routes are quite restricted due to Covid.” In other words, closing off current routes will - according to Patel herself – likely result in smugglers shifting to alternative (likely more dangerous) routes. The government’s own impact assessment  stated the measures in the bill to discourage refugees to claim asylum in the first safe country they arrive, and the objective to deter illegal entry and stopping people endangering their lives by taking these risky journeys is ‘limited’.
There are also strong concerns about the workability of the new immigration plan. The bill requires significant international co-operation and agreement which, following Brexit especially, is not available at the present time. In just this year, for example, 25,700 people entered the UK through the English Channel by small boats and only 5 have been removed from the UK. This is because of challenge that the UK has faced as a result of the Brexit deal. The UK is currently struggling to return asylum seekers to any European country given that the Dublin Regulation III no longer applies to the UK. At the moment and in the future, it is very unlikely to see any agreement between EU and the UK to allow the UK to return people back to their countries. According to a report by The Independent, turning boats back to France and removing those who are coming via irregular routes to safe European countries – which form a main part of the bill - are unworkable because there are no bilateral agreements between the EU and the UK.
The bill also requires internal cooperation within UK institutions, which is currently also unlikely. For example, Frank Ferguson from the Crown Prosecution Service, stated “It is right that those who exploit and profit from the desperation of others - or put lives at risk through controlling or driving overcrowded small boats or confined lorries - are considered for prosecution.” But in term of asylum seekers and refugees Ferguson mentioned, “we also have a duty to consider the public interest in prosecuting passengers, who often have no choice about their method of travel, for offences that can usually be better dealt with by removal.”
In the end, the Nationality and Border Bill is unlikely to dismantle people smugglers’ business models, instead it will do exactly the opposite. The bill also pushes more people into the hands of people smugglers. The people smugglers will also charge more to vulnerable people because they will take more risks. Shutting down one route will open other routes for people who need to come to the UK, but these are likely to be even more dangerous than those currently used. If the government really wants to stop people smugglers and stop people from attempting dangerous journeys across the channel, it should instead provide safe legal routes for those seeking asylum in the UK.
First published: 16 December 2021