The Truth About Migrants And The Law

The movement of migrants across borders is a highly complex and contentious issue. While some countries have adopted aggressive measures to curb unauthorised migration, the evidence suggests that stricter immigration enforcement policies do not effectively deter individuals from migrating through irregular channels.

In the context of US-Mexico border crossings, asylum seekers have the legal right to seek asylum under US and international law. However, recent executive orders and amendments by the Biden administration have curbed this right, suspending the asylum process for those who arrive at the southern border away from official points of entry.

In Europe, the UK government's plans to turn away migrant boats attempting to cross the English Channel have sparked controversy. While the UK Border Force has started training staff in pushback tactics, human rights groups argue that these practices violate international law, specifically Article 14 of the UN Declaration of Human Rights, which states the right to seek asylum from persecution.

The legality of migrant crossings is a highly nuanced topic, and it is essential to consider the specific circumstances, applicable laws, and international obligations of the countries involved.

Migrants who are refugees have the right to seek asylum

An asylum seeker is someone who has fled their home in search of safety and protection in another country. Asylum seekers may be of any age, gender, socio-economic status, or nationality, though the majority come from regions of the world that are suffering from conflict, disaster, and weak rule of law.

The term "asylee" is used in the U.S. for people who have been granted asylum. Under U.S. immigration law, a person granted asylum is legally allowed to remain in the country without fear of deportation. They qualify to work and travel abroad and can apply for their spouse or children under the age of 21 to join them. Asylees have the opportunity to become permanent residents and eventually citizens, provided that they meet all other requirements.

To be granted asylum, one must meet the definition of a refugee. A refugee is a person who has fled their own country because they are at risk of serious human rights violations and persecution there. The risks to their safety and life were so great that they felt they had no choice but to leave and seek safety outside their country because their own government cannot or will not protect them from those dangers. Refugees have a right to international protection.

Seeking asylum is legal. Asylum seekers must be in the U.S. or at a port of entry (an airport or an official land crossing) to request the opportunity to apply for asylum. However, since June 4, 2024, an executive order on the border and its amendment of September 30, 2024, have curbed the legal right to seek asylum.

The asylum process is complex and involves multiple federal agencies. Asylum seekers may also have to navigate the U.S. justice system if their cases get sent to immigration court. Asylum seekers have three pathways to obtaining asylum: the affirmative process, the defensive process, and the expedited process. Depending on the path, the length of the asylum process can range from a few months to a few years.

Asylees are eligible for a host of benefits and services. After at least one year in the U.S., asylees can apply to become lawful permanent residents.

Migrants who are not refugees can be subject to expedited removal

Under expedited removal, noncitizens can be deported without a hearing or the chance to present their case to an immigration judge. They have no right to counsel, no right to an appeal, and are required to be detained pending removal. The entire process often consists of just an interview with the inspecting officer, so there is little opportunity to consult with an attorney or gather evidence that might prevent deportation.

Any noncitizen who is subject to expedited removal is ordered removed. This order typically cannot be appealed and carries a five-year ban on re-entry. However, there are some protections for people who indicate a fear of persecution or torture, or an intent to apply for asylum. In these cases, individuals must be referred for a "credible fear interview" (CFI) with an asylum officer. If the asylum officer finds that the person has a credible or reasonable fear of persecution, then the expedited removal order is revoked, and the person will be permitted to apply for protection in normal removal proceedings.

The use of expedited removal has increased substantially over the past two decades, with approximately 193,000 people deported from the US through this process in FY 2013. The Biden administration has increased its reliance on expedited removal and is considering a dramatic expansion of the process through the Family Expedited Removal Management (FERM) program. This program combines expedited removal with mandatory surveillance and has been criticised for not providing meaningful access to legal counsel.

Border officials are training in pushback tactics to turn migrant boats away from UK waters

Border officials are training in "pushback" tactics to turn migrant boats away from UK waters. This comes as part of Home Secretary Priti Patel's plan to make illegal border crossings via the English Channel "unviable".

The training of Border Force workers in "pushback" tactics is nearly finished, according to reports. The Home Office is understood to have taken legal advice that turning around some boats would be allowed under maritime law.

The term "pushback" refers to ""the practice by authorities of preventing people from seeking protection on their territory by forcibly returning them to another country".

Several human rights groups have claimed that pushbacks are a breach of international law because they violate Article 14 of the UN Declaration of Human Rights, which states that everyone has the right to seek asylum from persecution.

The United Nations Convention on the Law of the Sea creates an obligation to rescue anyone in danger at sea. Article 98 obliges states to require all masters of a ship to help anyone in danger at sea, so long as it does not also cause serious danger to the rescuing ship.

The French have repeatedly refused to intercept or take back migrant boats. Instead, French vessels have often been seen assisting migrant boats into British waters.

The French interior minister has rejected the idea of "pushbacks", stating:

> "France will not accept any practices that go against maritime laws, nor any financial blackmail... The UK must keep to their commitments, which I said clearly to my counterpart Priti Patel. The friendship between our two countries deserves better than these actions that harm the cooperation of our services."

The use of "pushback" tactics is controversial and raises questions about the legality and ethics of preventing migrants from seeking asylum. It remains to be seen how the UK's approach will evolve and whether it will be challenged by other countries and human rights groups.

Entering the US illegally can result in criminal penalties, including fines and imprisonment

For a first offence, a person can be fined, imprisoned for up to six months, or both. For a subsequent offence, they can be fined, imprisoned for up to two years, or both.

If a person has been convicted of certain types of crimes and has been deported from the US, separate penalties apply for re-entry. For example, if a person has been convicted of three or more misdemeanours involving drugs or crimes against a person, or a felony (other than an aggravated felony), they shall be fined, imprisoned for up to ten years, or both. If a person has been convicted of an aggravated felony, they shall be fined, imprisoned for up to 20 years, or both.

In addition to criminal penalties, there are also civil penalties for unlawful entry into the US. This includes a fine of at least $50 and not more than $250 for each entry or attempted entry, or twice that amount if the person has been previously fined for the same violation.

Migrants who are intercepted at sea can be forcibly returned to their country of origin

The issue of migrants being intercepted at sea and forcibly returned to their country of origin is a highly complex and contentious topic, with legal, moral, and humanitarian implications. This issue has gained significant attention in recent years, particularly in the context of the European migrant crisis and the US-Mexico border situation. While some argue that such actions are necessary to maintain border security and deter illegal migration, others view them as a violation of international law and human rights.

Under international law, there is a clear duty for ships to assist those in distress at sea. The United Nations Convention on the Law of the Sea states that ships must assist anyone found in danger at sea and proceed with the rescue of people in distress if informed of their need for help. This obligation applies to a state's territorial waters, search and rescue regions beyond territorial waters, and international waters. However, the question of whether pushback operations, which involve returning migrants to their departure point or territorial waters, violate international law remains disputed. Some experts argue that these tactics endanger lives and violate the human rights of migrants, while others defend them as necessary to maintain border security.

The United Nations High Commissioner for Refugees and the UN Special Rapporteur on the Human Rights of Migrants have expressed concern over the potential risks involved in pushback operations. They argue that these operations may violate the principle of non-refoulement, which prohibits returning individuals to a country where they face torture or other irreparable harm. Additionally, pushback tactics may not provide migrants with a genuine and effective chance to submit arguments against their expulsion, as required by international law.

The legality of intercepting and returning migrants at sea also depends on the specific circumstances and the migrant's country of origin. For example, the European Court of Human Rights has ruled that pushback tactics used by Greece and Italy were incompatible with the law prohibiting 'collective expulsions' under Protocol 4 of the European Convention on Human Rights. However, the UK, which is not a signatory to Protocol 4, has considered implementing similar tactics.

The issue of migrant interception and forced return is further complicated by the involvement of multiple countries and the lack of a unified international response. In the case of the US-Mexico border, for instance, the US government has invoked Title 42 of the US Code, which allows for the expulsion of individuals to prevent the spread of a communicable disease. This policy has been challenged in federal court, with a judge ordering that Title 42 should not be used to expel families with children. The Biden administration has also implemented an executive order suspending the right to seek asylum for those arriving at the southern border without a CBP One app appointment.

The forced return of migrants to their country of origin can have severe consequences, especially when they are returning to countries with political instability, violence, or natural disasters. For example, Haiti, which has faced political turmoil, natural disasters, and widespread gang violence, has seen a significant outflow of migrants in recent years. However, those returned to Haiti may face dangerous conditions and a lack of opportunities, leading them to pursue other avenues for immigration.

In conclusion, the issue of migrants being intercepted at sea and forcibly returned to their country of origin is complex and multifaceted. While some argue that these actions are necessary to maintain border security, others view them as a violation of international law and human rights. The legality and ethical implications of such operations depend on the specific circumstances, the migrant's country of origin, and the policies of the intercepting country. A comprehensive and humane approach to migration, which takes into account the needs and rights of migrants, is essential to address this complex issue.

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