4 August 2014

With the Calais crisis showing no signs of easing, there has been feverish speculation about who is to blame, and a few prominent commentators have identified the EU as the chief culprit. Given the potential implications of the Calais crisis on the broader EU debate, it is worth examining some of these arguments in greater detail:

The UK has lost control of its borders: While the lack of borders between most EU member states does make it easier for migrants (be they asylum seekers or economic migrants) to reach Calais in the first place, the UK is not in the Schengen area and so it is still able to police its borders. EU free movement does not mean that people coming into the UK are no longer subject to border checks. In fact, as a result of the 2003 bilateral treaty between the UK and France (the Le Touquet Treaty), the UK border has effectively been moved to Calais. In the current context this arrangement benefits the UK more than it does France and if the French were to withdraw from it – and Brexit would arguably serve as a good pretext – it would make it much easier for migrants to reach the UK. It is perfectly legitimate to criticise the Schengen border-free arrangements in the rest of the EU, but UK withdrawal would not, in of itself, change this at all. Migrants would still be able to travel to Calais and if the treaty were revoked and the border moved back from Calais to Kent, they could simply amass there.

The EU stops the UK from ‘kicking out’ illegal migrants: Unlike the above argument about border controls, this one is less clear cut. There are EU rules in place which restrict how member states can deal with asylum seekers including the 2005 Asylum Procedures Directive and the Charter of Fundamental Rights. However, these codify in EU law the 1951 UN Geneva convention on refugees (as amended by 1967 Protocol). The Convention, to which the UK is a signatory, states that refugees should not be penalised for their illegal entry or stay, while its non-refoulement clause prohibits the expelling or returning a refugee “in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened.”

Therefore, adherence to the convention both directly and via EU membership, sets out some restrictions on the UK’s ability to return ‘illegal’ migrants. The Convention likewise makes it harder for the EU to adopt an ‘Australian-style’ policy of intercepting migrant boats at sea and forcibly returning them to their point origin. While this policy has been credited with having saved migrants’ lives, the UN has deemed it to be in violation of the non-refoulement clause (and also the separate UN Convention on Torture). It is again perfectly legitimate to argue that the UN Convention needs to be updated to take into account new realities, but critics should be honest about the fact just leaving the EU will not result in the UK gaining new powers to deport asylum seekers without it also withdrawing from/ignoring UN rules – a tough sell domestically. In any event, the UK would need the EU as a whole to adopt such a policy – unless it decided to unilaterally police the Mediterranean itself.

There are also EU rules in place on transferring asylum seekers between member states – under the Dublin system, responsibility for handling an asylum claim rests with the member state through which the asylum seeker first entered the EU. This allows the UK to return asylum seekers to other EU member states, although in practice the system is not working well; many migrants avoid being formally documented upon their arrival in the EU and quickly move on. In addition, the European Court of Human Rights and European Court of Justice have ruled that due to the extremely poor conditions for asylum seekers in Greece – a significant entry point – returning asylum seekers there constituted a breach of their human rights. Nonetheless, despite its flaws, to the extent it does work, the UK benefits from its inclusion in the Dublin system. There is no doubt it can and should be improved but there are no clear benefits to withdrawing from it.

The EU is stopping the UK from cutting benefits for asylum seekers: While David Cameron is pushing for changes to limit EU migrants’ access to benefits, this is a completely separate issue to asylum seekers’ benefits. Although there are EU rules in place designed to ensure that asylum seekers have access to basic necessities, whichever EU state they end up in, it is hard to imagine the UK would completely scrap these as long as it accepted migrants’ right to apply for asylum. The UK has a dedicated benefits regime for asylum applicants separate from the UK welfare system which is less generous than similar schemes in other member states, and the government has already announced it will strip failed asylum seekers of their automatic right to claim benefits.

However, the EU also has to face up to its policy failures: Fundamentally, the main driver of the migration crisis is war, political instability and wildly different economic opportunities, for which it is hard to blame the EU. However, that said, many of the EU’s policies have certainly not helped. The Common Agricultural Policy stunts opportunities for economic growth in developing countries via subsidies and tariffs on imports and the Common Neighbourhood Policy failed to promote prosperity and political reform in North Africa and the Middle East, despite the billions of euros spent in aid (€13.3bn between 2005 – 2013).

In conclusion, there are a number of legitimate grounds for wanting the UK to leave the EU, but it is hard to see how this would leave the UK better equipped to tackle the Calais crisis. This is a global issue that cuts across the EU and illustrates how interdependent countries are when it comes to irregular migration. This crisis illustrates that, inside or outside the EU, Britain would be to some extent reliant on the likes of France and Italy to enforce its migration policies and to police its borders.

There is one area where EU law does restrict UK action, but unless the UK were prepared, post-Brexit, to also withdraw from UN rules, it would still face the same limitations it does now while the willingness of other EU member states to work with Britain to intercept irregular migrants before they land on UK shores might be diminished.