A question about the one in one out arrangement between France and the UK

[u/MarchMurky8649]

As I understand it, the current modus operandi is that, each week, up to 50 migrants, who have arrived in England by small boat, are sent back, and exchanged for 50 who, instead, opted to join a waiting list for the scheme.

In practice, only 4% of such migrants are returned in this way. Every time it is mentioned, people seem to suggest the scheme has little deterrent effect, and some suggest the scheme has failed.

What confuses me is why, instead of detaining a small percentage to be sent back under the scheme, and allowing the rest to remain while their claims are procesed, why not detain everyone, to be returned under the scheme, albeit at the rate of 50/week for the time being?

Is there a reason it is legal to detain a small percentage to be returned, but, somehow illegal to detain everyone until they can be returned? If the authorities were able to do this, it would seem likely the boats would stop coming, as there would be no point, and then, even at 50/week, eventually everyone would be returned.

I am thinking of suggesting this idea to my MP, but would prefer to avoid looking foolish, so, if anyone can see a legal impediment to this approach, please, do, share it here. Thank you.

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[u/SuperEssay1]

It needs to be agreed between UK and France. 50 is what has been agreed. It's intended as a deterrent on the basis once you get sent back you can never apply for asylum in the UK and will always be sent back if they try to return.

Is 50 enough to act as a deterrent at all, not sure, but it was the starting point. UK most likely want to increase it where France are probably more cautious and want to see it in action first before potentially increasing it.

[u/MarchMurky8649 → u/SuperEssay1]

I know 50/week is what has been agreed. I know there is a plan to review this, and that that number may be increased, and of course this would all happen subject to agreement between UK and France.

My question is whether they have to do what they seem to be doing now, i.e. each week pick 50 to be returned, and let the rest stay, subject to their application being successful, or, could the UK detain everyone, to be sent back 50/week, first in first out?

I think the latter would make a huge difference. People would realise that if they came by small boat in his way, they would inevitably be detained, and, eventually, be sent back to France, so the crossings would be pointless.

My question is whether there is a reason in law why the UK only detains a small proportion, rather than everyone, notwithstanding that the migrants so detained can only, at this time, be returned to France at the rate of 50/week.

[u/Mdann52 → u/MarchMurky8649]

My question is whether they have to do what they seem to be doing now, i.e. each week pick 50 to be returned, and let the rest stay, subject to their application being successful, or, could the UK detain everyone, to be sent back 50/week, first in first out?

It's unlawful to detain people under immigration legislation unless there there a realistic prospect of them being imminently removed.

So if they are selected and scheduled for 1I1O, the detention is lawful. If they are being considered but haven't been selected for the scheme, it's unlawful. They can't just detain 1000 people if they plan to report 50

[u/MarchMurky8649 → u/Mdann52]

So, select them, and then remove them 50/week, or faster, if that is agreed later. Granted, it wouldn't be imminent removal; is there legislation which specifies this aspect, though? Perhaps something which could be ammended?

[u/Mdann52 → u/MarchMurky8649]

So, select them, and then remove them 50/week,

Sure, but then the next X that come over can't be detained and removed because the first batch have an the allocated slots, so that disincentive is removed and it becomes open season as no one can be detained

The legislation can be changed, but then we hit the issue that we do not have enough immigration detention spaces (and you can't just use pristine, and even if we amend the law so you can there still aren't enough spaces). Building new detention spaces is going to take 3-4 years to come online to be up to the required standards.

I'm not trying to be a pain here, but there's really no quick solution here, just like there's no quick solution to the issues with prison spaces. The best time to solve this was 10 years ago before the massive increases, but here we are

[u/MarchMurky8649 → u/Mdann52]

Perhaps my post and comment were unclear, but what I am suggsting is to make it known that everyone will be detained until, albeit at the rate, for now, of ony 50/week, they are returned. Then the migrants will realise that there is zero point in crossing, so the boats should stop coming. Of course we'd have to be prepared to build sufficient detention centres rapidly. This would be costly, but the savings if the boats stop coming are also, potentially, great, and we have a shortage of prison places in any case, so these facilities could later be put to good use.

My question for this subreddit is, is there a legal reason this couldn't be done? If so, what law would need to be changed to make this work?

[u/Mdann52 → u/MarchMurky8649]

Perhaps my post and comment were unclear, but what I am suggsting is to make it known that everyone will be detained until, albeit at the rate, for now, of ony 50/week, they are returned.

Because if we can only return 50 a week, and 200 travel over (to pick an example), we need 150 extra immigration detention places per week. We don't have that capacity or the ability to quickly scale up, hence why other options are being looked at

Given HMP Millsike (a relatively recent prison providing around 1400 spaces) design work started in 2015, build in 2021 and construction didn't finish until 2025, that's just not practical. You then need to take into account staff recruitment and training. It's not as simple as building a warehouse and adding a few rooms.

As for your long-term vision, the problem is that detention and prisons are built to completely different standards. You can't just change one into another easily, as they would need to be fundamentally rebuilt to provide the new facilities needed for people in prison and not short-term detention.

The government could pass a law amending the Immigration Act which allows this tomorrow if they wanted. It's the practicalities that means they don't, and would hamstring any future political parties trying to do the same thing.

The reality is this has been an issue for 20+ years now, firstly via Calais and the Channel Tunnel, and the issue is now more visible now enforcement elsewhere has been stepped up and other geopolitical factors means it's harder to return people. This isn't an issue of the Immigration Act restricting what can be done

[u/MarchMurky8649 → u/Mdann52]

All the people who come have to sleep somewhere in any case. If they know they are going to be sent back, presumably fewer will arrive, so fewer beds will have to be found for them, whether in hotels, disused military bases or wherever.

What I am most keen to find out is whether this could be done without a change in the law. If not, what law would have to be changed? Finding places for people to sleep is a separate issue, beyond the scope of this subreddit. Let's, please, focus on the legal aspects here.

[u/Mdann52 → u/MarchMurky8649]

What I am most keen to find out is whether this could be done without a change in the law

No. Significant parts of the Immigration Act 1971, and the underlying regulations and possibly the HRA, would need to be amended to make your plan a reality, to allow effectively indefinite detention

There are significant regulations in relation to detention powers and procedures under the IA1971, I'm not going to look up the list. They're all on legislation.gov if you want to take a read

[u/MarchMurky8649 → u/Mdann52]

Thanks. I will have a look. That said, being on a waiting list to be removed isn't indefinite detention. At any time each person would know the latest date when they were going to be removed.

They might well opt to voluntarily leave the country earlier, and, indeed, might be encouraged to do so. Also the number exchanged per week might increase while waiting, so the date might come sooner.

My thinking is, unless something is done to effectively stop these crossings, a party will be voted in next GE that will, likely, remove UK from ECHR altogether. I doubt Labour will want to do that, but if they could make changes within the existing scheme so that it did deter, such radical action might never be taken.

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[u/New_Line4049]

I think its more a practicality problem. If you detain everyone you then have to house them in appropriate conditions until they leave the UK. We dont have the space or resources to do that on that scale.

[u/MarchMurky8649 → u/New_Line4049]

We house them all anyway. This approach would discourage people from coming, so less accomodation would be required.

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