In 2020, we heard a lot from Boris Johnson’s government about its intent to improve border control, given a surge in illegal boat crossings in 2019. However, the government is underinvested in legal and practical solutions. The Home Secretary Priti Patel waited until December before announcing plans to stop murderers and rapists from claiming asylum (duh!). She says she won’t specify any plan until 2021. That’s after Britain properly leaves the EU, without a replacement for the rules governing the return of asylum-seekers to the continent (where almost all of them belong).

Thus, controlling asylum abuse will be more difficult in 2021 – bizarrely, after Britain leaves EU jurisdiction. And the Reclaim Party and Reform UK (formerly Brexit Party) are waiting to punish the Conservative Party on this issue at the local elections in May.

EU law allows for more selfishness than British governments execute

Britain’s legacy focus is to return unwarranted migrants, more than to keep them out. Britain currently facilitates illegal boat crossings, while paying France to prevent them. Britain’s effective policy on asylum-seekers can be summed up as accommodate-and-transfer, where only a minority are traditionally transferred out. By claiming asylum, illegal entrants escape criminal consequences and receive accommodation and income, without prima facie adjudication. Even if they lie, even if they hijack planes to get here, even if they escape justice in their home countries, British courts will excuse them for duress. Courts also tend to treat any time in country as a right to remain.

Successive British governments have blamed the EU for their failures to improve this ridiculous situation. In fact, EU law allows for more selfishness than British governments execute. The EU’s Dublin Regulation, effective since 1997, confirms the international law that asylum seekers must claim in one country and not move on. The Regulation provides rules on how to transfer migrants back to a prior country. (Under international law, this is supposed to be the first safe country the asylum seeker reaches, although the EU operates quotas to relieve the pressure on the Mediterranean countries.)

The Dublin Regulation imposes a 42-day limit on detention of asylum seekers pending transfer. Progressive lawyers exploit this clause by endless appeals, until 42 days is reached. The grounds are usually bogus. For instance, in September, the High Court agreed that Spanish facilities should be investigated before returning a Syrian and two Yemenis there. (Their charter flight had been scheduled for the next day.)

In theory, non-EU citizens should be easier to deport, because they are protected by only international and domestic laws, not EU laws too. In practice, British courts extend the same protections.

When courts side with the government, celebrities jump in. In the final week of November, 82 black Britons signed a letter urging airlines not to comply with the government’s deportation of 50 Jamaican-born, non-British criminals (the charter flight was scheduled for the following week).

In January 2021 the government won’t have the bandwidth to address the asylum regime

The 82 included the model Naomi Campbell, the historian David Olusoga, and actors Naomie Harris and Thandie Newton. Their letter claimed that deportation flights could enable the unlawful removal of people who have the right to remain in the UK. Not true, said Priti Patel. Her department issued a breakdown of the 50 Jamaicans’ criminal records, which comprised a combined total prison sentence length of 294 years including two life sentences counted as 20 years each. Their offences included murder, rape, drug dealing, child sex offences, grievous bodily harm, firearms possession, importing drugs, manslaughter and attempted murder. Their average sentence was eight years and two months in prison.

Labour joined the critics and demanded cancellation of all the deportations. The deportees were reduced by more than half after a succession of legal challenges, including claims that two men would be at risk at flying with high blood pressure.

Once a returnee has reached 42 days in detention, they must be released, under EU rules. A migrant released from detention can be ordered to update authorities periodically on contact details, but the migrant can choose to disappear. If they avoid the authorities for six months, the Dublin Regulation cancels the legitimacy of transfer.

EU law prohibits transfers of children, defined as under 25 years of age. The Home Office admits that it struggles to prove age: the method involves two days of assessment by two especially trained social workers, acting independently. In latest testimony, the Home Office admitted that most claimants to be under 25 are successful. The Home Office claimed not to have a cardinal number for this proportion, but we can assume that “most” means practically all.

The Dublin Regulation prevents transfer of anyone claiming relatives in Britain. (The relatives can be many steps removed and proven by nothing more than a letter.)

For all these generous reasons, the net flow of migrants is actually into Britain, even though almost all migrants should (under international law) be accommodated in prior countries. From 2017 to 2019 (inclusive), three times as many transfers arrived as departed. Other countries are incentivized to release asylum seekers back into the borderless continent, knowing that migrants can have another crack at crossing the channel, with a new claim of abuse, being a child, or reaching relatives.

Asylum claims have fallen in recent years, as other European countries became more accommodating, and the Brexit referendum in 2016 created a false impression of a change in national policy. The rate of seekers fell in 2020 due to travel restrictions in response to the Covid pandemic, although clandestine boat entries rose, due to an unusually early summer, distorted reallocations of official resources, and downright inattention.

Curiously, the rate of returns from Britain to other EU countries has fallen even quicker than asylum claims. From 2004 to 2018, returns fell from 15,000 to 4,000. The Home Office has failed to report data consistently for 2019 or 2020, although MigrationWatch estimates that the rate was lower in 2019 than any previously recorded year. Only 1 in 42 illegal entrants from January 2019 through October 2020 has been returned. In 2011 (the first full year after the return of a Conservative premier) the number of asylum-seekers remaining in Britain but subject to transfer was 24,000. For the last several years, including 2020, the Home Office estimates the number at more than 41,000.

From 2015 to 2019, Britain received almost 200,000 asylum claims. Another 28,000 migrants will be added in 2020, by illegal boat crossings alone (given the official rate for the first six months of this year). By September, only half of those who had crossed since January had been processed. Of these, 20 per cent were granted asylum. Most of the rest had travelled through safe countries to get to Britain. Yet few will be returned before Britain leaves EU jurisdiction in 2021.

Reform UK and Reclaim Party will have a field day in the May elections

Thus, while the government brags about a falling rate of asylum claims, for which it deserves no credit, it is actually retaining a higher proportion of asylum-seekers and returning a lower proportion. Consequently, the material costs of asylum-seeking has grown. The budget for handling asylum seekers rose from £700 million in 2019-2020 to more than £900 million in 2020-2021 (starting in April). While the maritime fleet and reception centres have expanded, the estate for detention centres has reduced by nearly half. MigrationWatch estimates the cost of accommodating, feeding, and otherwise supporting asylum seekers at £400 million. The cost to the taxpayer of legal aid to asylum seekers was nearly £40 million in the fiscal year 2019-2020.

While the government blames current law, it is not ready with an alternative. In 2019, Parliament legislated to withdraw from the Dublin Regulation as of the start of 2021, and enacted new provisions for border security. Yet, Britain is still lacking a replacement regime for returning migrants to the EU. Boris Johnson wanted a post-Brexit deal with the EU by 15 October, then by 19 November. His government is still negotiating. While the government is stuck on fisheries and other economic issues, it has not negotiated anything on asylum-seeking.

Britain could try to reach bilateral agreements with each member, but no other country is as incentivized as is Britain.

In January 2021, the British government will still be scrambling to tie up loose ends from whatever broad, under-specified “deal” it reaches with the EU. The government won’t have the bandwidth to address the asylum regime. Priti Patel will be late to enact her department’s reforms. Soon, Spring will be upon us.

At that point, the Conservative Party will be campaigning for the local elections in May – on the defensive, with a legacy of disappointments on Brexit, Covid, economic recovery, etc. Meanwhile, it will be forced to admit a backlog of unwarranted asylum seekers, with no legal provisions to return them anywhere, just when the season for illegal boat crossings will be returning to peak. Reform UK and Reclaim Party will have a field day.