The Home Office has been threatening asylum seekers with deportation for alleged crimes they did not commit, it has emerged.
A Court of Appeal judgment revealed the existence of “notices of liability to detention”, which were handed to migrants crossing the English Channel on small boats.
The documents claimed they were “illegal entrants” and “may be liable to removal or deportation from the United Kingdom”.
“You are specifically considered an illegal entrant to the UK as you were encountered in a private vehicle, namely a RHIB [rigid-hulled inflatable boat], which had recently arrived in the UK from France,” the notices read.
“You could not produce any travel document or provide any evidence of your lawful basis to be in the UK and have therefore entered the UK in breach of S.3(1)(a) of the Immigration Act 1971.”
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But judges said the Home Office had misinterpreted the law and that crossing the Channel by dinghy to seek asylum did not amount to illegal entry.
Evidence revealed during a successful appeal by asylum seekers who were wrongly jailed for steering small boats said “a number of the official documents” had been issued, and caused immigration interviews to “proceed on an erroneous basis”.
Judges found that a “heresy about the law” had originated among Home Office officials and been passed on to prosecutors, defence lawyers and the courts – sparking several unlawful prosecutions.
“As the law presently stands, an asylum seeker who merely attempts to arrive at the frontiers of the United Kingdom in order to make a claim is not entering or attempting to enter the country unlawfully,” said the Court of Appeal judgment.
“Even though an asylum seeker has no valid passport or identity document or prior permission to enter the United Kingdom, this does not make his arrival at the port a breach of an immigration law.”
The Home Office refused to say whether it had scrapped or changed the notices since the judgment was given on 21 December in response to questions from The Independent, citing operational reasons.
The government is planning to make prosecutions easier with the Nationality and Borders Bill, which would make it illegal to “arrive” in British waters, even if people are intercepted before technically entering the country.
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Record Year Sees More Than 28 300 People Cross Channel To UK
Bella Sankey, the director of Detention Action, accused the government of misleading the public with a “campaign of misinformation” suggesting that all Channel crossings are illegal.
“The Court of Appeal has confirmed that in these cases the government has behaved unlawfully,” she added.
“It is staggering that instead of apologising to the people wrongly prosecuted, the government is refusing to confirm that it is complying with the court's ruling and has stopped lying to people seeking asylum.”
The Joint Council for the Welfare of Immigrants (JCWI) hit out at what it called a “total miscarriage of justice”.
Campaigns director Minnie Rahman said the notices meant that people “with strong grounds for protection will have had questioning prejudiced against them – harming their chances of getting refugee status here”.
“It's characteristic of a government that’s intent on scapegoating refugees to distract from their own failures; namely their failure to prevent risky journeys in the first place,” she added.
“The only way this government will ensure that people don't die crossing the Channel is to provide asylum seekers with safe means to get to the UK – this means abandoning plans laid out in their new Borders Bill.”
The number of migrants crossing the Channel by small boat tripled in 2021 to more than 28,000, despite home secretary Priti Patel’s repeated vows to make the route “unviable”.
More than 450 people have made the journey in the opening weeks of 2022, and charities have warned that the trend will continue unless more safe routes are provided.
A Sudanese man died after falling from a boat on Friday, and at least 27 people drowned when their boat sank off the coast of Calais in November.
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Mike Adamson, chief executive of British Red Cross, said: “There are no simple answers but we urge the government to rethink its plans for making the UK's asylum system harder to access. This should start with ambitious plans for new safe routes.”
Steve Valdez-Symonds, Amnesty International UK's refugee and migrant rights director, said: “Unless it's drastically amended, the draconian Nationality and Borders Bill now going through parliament is set to make the lives of people seeking asylum even harsher, while allowing smugglers and other abusers to continue to profit from this completely unacceptable situation.”
British law means that anyone seeking to claim asylum in the UK must be physically present in the country, and there is no asylum visa.
The government has championed resettlement schemes, but they are not open to asylum seekers who have already reached France and Belgium.
A Home Office spokesperson said: “People fleeing persecution should seek safety in the first safe country they reach and not risk their lives paying criminal gangs to be smuggled illegally across the Channel.
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“We are reforming our approach to illegal entry to the UK and asylum to end the overt exploitation of our laws which UK taxpayers are forced to endure.
“In addition, the Nationality and Borders Bill will make illegal arrival a criminal offence and introduce a maximum sentence of life imprisonment for those who facilitate illegal entry into the country.”