Let’s see what makes you a criminal in Patel’s universe. We saw in the first blog of this series that travelling to the UK without a valid travel document and then applying for asylum is now a punishable offence, despite the Refugee Convention saying that signatory states “shall not impose penalties” for such an act. However, in Patel’s new universe, according to the law she has spawned, you may be tried in a magistrates’ court or the Crown Court and, while the punishments are different, punished you will be. This is true whether you have arrived in a small boat provided by smugglers or you have managed, say, to hide in a lorry to get across the Channel. Migrants coming to the UK illegally, says Patel, should be “appropriately penalised” for breaking the law, especially when they “originate” from safe European countries (Policy Statement, p. 36). In fact, of course, they don’t originate from safe European countries: they originate from the home countries they had to flee. The most they may have done is to pass through a European country. But that has now also become a crime.

Others will be punished too. The Nationality & Borders Act (NBA) increases the powers of Border Force guards to search vehicles. If you are a lorry driver you will be punished if your vehicle has not, in the opinion of the Border Force guards, been secured against “unauthorised access” (NBA, Schedule 5 (1), (a)). Moreover, this will happen whether or not a refugee is found in your vehicle: “A penalty may be imposed … regardless of whether any person has obtained unauthorised access to the vehicle” (Schedule 5 (3)). All this comes under the heading “Failure to secure goods vehicle, etc”. But the factors which constitute such “failure” are only vaguely identified in the Act. They include “checking”, “reporting”, and “keeping records”. It is left to the Secretary of State to specify details through regulations, which presumably she and her successors will do from time to time. But all this places an uneasy burden on drivers. Carriers (owners of ships, aircraft and other means of transport) will also be punished. If you have travelled on a ship or aircraft without a valid travel document and you are caught by an immigration officer, the carrier will be fined £2,000 (NBA, s. 76 (2)).

Penalties abound. In one example, where Patel seems determined to dot every “i”, cross every “t” and nail everyone in sight, Schedule 5 (12) of the Act stipulates:

Where a penalty is imposed … on a person who is the driver of a goods vehicle pursuant to a contract … with … the vehicle owner or hirer … the driver and [the owner] are jointly and severally liable for the penalty imposed on the driver (whether or not a penalty is also imposed on [the owner]).

The definition of “travel document” seems to be expanding. In her Policy Statement, Patel declares (p. 39): “[W]e will legislate to establish and enforce Electronic Travel Authorisations (ETAs)”. To get your ETA you will have to declare any criminal record you may have (or presumably declare that you have no criminal record). Apparently, everyone coming to the UK will need one — as well as a passport. “This will”, says Patel, “give the UK more control of our borders, improve our capability to count people in and out and ensure we can do more to prevent criminals from travelling to the UK” (ibid.). This desperate insistence on closing the gates and pulling up the drawbridge reflects an unreasonable fear of outsiders, an exaggerated xenophobia. If that is denied, I want to ask why criminality checks should take place for people travelling from Berlin to London but not for people travelling from Manchester to Devon. The only possible answer must be our fear of foreigners. And that is xenophobia.

But for all the penalties and punishments imposed on drivers, hauliers, ship owners and train operators, there are few clues as to what will happen to the smugglers themselves. Patel seems to believe that, because of these punishments, the criminal networks will be disrupted and their business model broken. But is this credible? Research published by the Migration Policy Centre suggests that “policy interventions aimed at disrupting smuggling networks may make smuggling more lucrative and increase incentives for criminals to enter this market” (https://globalinitiative.net/wp-content/uploads/2018/01/EUI-What-Does-It-Mean-to-Disrupt-the-Business-Models-of-People-Smugglers_.pdf, p. 3). In other words the smugglers will become richer and there will be more of them. As one refugee, “Fernando”, told Refugee Action:

On the news [the govenment] were saying that “we are doing this so smugglers don’t get money” … [but] what you will do is make them richer as they will find out how to get in the country and they will charge more … People pay! Because they need to save their lives (“All Punishment No Protection: Why the Anti-Refugee Bill Should be Scrapped”, p. 8: https://www.refugee-action.org.uk/wp-content/uploads/2021/11/All-Punishment-No-Protection-Report.pdf).

This also means that many people will become indebted to smugglers and traffickers, another lucrative aspect of their trade.

There is certainly no sign of a fall in Channel crossings. According to the Commons Home Affairs Committee, this “may be attributed to scaremongering from people traffickers, that because of new regulations coming in across the Channel it will be much harder to access the UK in future, so they had better get on with it” (https://www.bbc.com/news/uk-england-kent-62539789). The people smugglers will doubtless also try other ways, other methods and routes, to persuade refugees to use their “services”. They have even been lowering their prices according to one report “as rival groups tried to achieve dominance in the market” (ibid.). This is a far cry from the destruction of their business model. It should be no surprise, as BBC South East recently reported, that suspected people smugglers

were using TikTok to advertise illegal entry to the UK via the English Channel. Fierce competition between gangs saw various groups boasting they were the “best” operator for successful crossings, and stating “Rwanda has been cancelled” (ibid.).

So punishing refugees for their lack of travel documents and the route they travel doesn’t seem to be dissuading them from making the journey. Nor does the punishment of lorry drivers, hauliers and carriers. And the disruption of anybody’s business model any time soon seems unlikely.

So how to stop the dangerous journeys, the smugglers and the deaths that are the inevitable result not only of their activities but of the steady disappearance of legal routes to safety? On this, Sophie McCann, advocacy officer of MSF UK, makes the point: “There are almost no safe ways for someone fleeing war, persecution or poverty to travel to the UK” (https://www.theguardian.com/uk-news/2022/apr/17/fury-as-patels-borders-bill-found-misleading-on-safe-routes-for-migrants?CMP=Share_iOSApp_Other). I will try to explore some of this in my next blog.