Compromising on humanitarian visas could allow the Illegal Migration Bill to end territory-based asylum in the UK

In 2022, almost 75,000 people applied for asylum in the UK. Of these, 45% entered the country by taking ‘small boats’ across the English Channel. The government’s response to these crossings has been extreme and unrelenting hostility.

Its latest step is the Illegal Migration Bill, currently being debated in Parliament. It is guaranteed to cause immense hardship, exploitation, and misery and follows in the wake of other failed deterrence policies, including the 2022 Nationality and Borders Act and a series of expensive and draconian deals with France to militarise and police border zones.

An alternative approach is desperately needed, and many are suggesting that reform could find inspiration in the humanitarian visas that the Home Office has made available to Ukrainian refugees. These have allowed Ukrainians to obtain travel documents while still in other countries and travel legally to the UK. Progressive actors have latched onto them because they represent a different, more humane approach to forced displacement than the UK has shown other groups in recent times.

However, ‘legitimate’ political space to argue for treating other nationalities with the same respect is scarce. The idea of a humane and generous asylum visa system for all is deemed politically unserious in many quarters, and this makes it difficult to talk about solutions on the scale needed to truly solve the problem. So all of us on the side of refugees’ rights are in a bind. Partial solutions that contort to fit the shrinking ground of the ‘politically possible’ are transparently insufficient to resolve the problem. And I fear that pursuing them right now is diverting energy from the fight against the bill’s attack on the right to territorial asylum.

So we need to decide. Do we keep shrinking our demands to try to protect ever-more restricted groups of ‘good immigrants’ that might benefit from bespoke schemes? Or do we take the more difficult path of fighting to protect the basic right of all people to ask for protection, regardless how they travel?

In the face of this bill, I think we need to stick to the broadest position we can. That means believing the country will want something better if we make the case for it, rather than reducing our demands to fit through an Overton window that has already been dragged so far to the right.

Time is running out.

Safe access to the UK

The rise in the number of people crossing in the last few years is partially explained by the reduction in viable alternative routes. Nobody puts their lives at risk in the back of a lorry or aboard a dinghy if they can simply take a plane. But for most people around the world, travel is tightly restricted. Governments require citizens of the world’s poor and dangerous countries to obtain visas before they travel, and task airlines with preventing all those without visas from flying.

The UK does not generally grant visas to people escaping war and persecution. Indeed, we actively restrict access to the country for people in these circumstances. As the war in Syria escalated, for example, so did our refusal rate for Syrian entry visas. Last year, as political repression increased in El Salvador, the UK government introduced new visa restrictions to prevent Salvadoreans – previously entitled to travel to the UK without a visa – from coming here.

The cynicism of this approach is in clear contrast to the humanitarian visa scheme for Ukrainians. It is still more restrictive than the EU’s visa-free approach, but it allowed over 200,000 Ukrainians to forego the dinghy in 2022. Refugees of other nationalities aren’t so lucky: just 22 Afghan refugees entered the UK through resettlement in 2022, while over 8,000 made the crossing by small boat.

The Illegal Migration Bill would make anybody entering by irregular means ineligible for asylum. Given that you must be physically present in the UK to claim, this leaves nearly all refugees in a Catch-22: they can’t get asylum if they come, and they can’t get asylum unless they come.

Humanitarian visas aim to break that impasse by making legal entry possible.

A menu of options

There are a handful of models falling under the rubric of humanitarian visas being discussed, primarily in publications aimed at the Labour party. Each have strengths and pitfalls, often directly related to their level of ambition.

1. A capped visa scheme available at British embassies for applicants with a strong prima-facie asylum claim

This proposal tries to reduce the overall damage by creating a legal pathway that complements (rather than replaces) the current asylum system. It would allow a fixed number of people in clear need to legally access the UK.

However, similar to refugee resettlement programmes carried out under the auspices of the UN, such a scheme would almost certainly preference target groups deemed ‘particularly vulnerable’ from a small list of pre-determined countries. It is unlikely that those getting into boats in France would qualify, and thus such a scheme is unlikely to reduce crossings.

Indeed, a capped visa programme may further delegitimize those exercising their agency in dinghies because they will have now failed to wait in hope for what is, essentially, a lottery with long odds.

2.Re-entry into the EU Dublin system

The EU’s Dublin Regulation allocates responsibility for asylum claims to countries based on various criteria. Family reunification, for example, is one ground for allocating the claim to a particular country, but the ‘first country of entry’ is the default. There is some credible evidence suggesting that exiting this system has contributed to the increased use of small boats, as refugees no longer have any method for transferring their EU asylum application to the UK. They also no longer face the threat of being returned to France as no return agreement is in place.

Proponents argue that re-entering the Dublin system would reduce boat crossings by forcing anybody caught on the water back to France as the default, as well as help some migrants connect with family members through official routes.

But those pushing for this option are forgetting history in order to overstate its potential. The UK was party to the Dublin regulation for years, and that did nothing to help the thousands of homeless refugees in camps in Calais, aiming to cross the Channel and dominating UK headlines. There is no reason to think that re-entering that system would create a different result.

3. A travel document specifically for those in Northern France who have good reason to choose the UK as a destination

This is perhaps the most realistic proposal for actually providing alternative means of travel to those otherwise making irregular crossings. But it is also the least realistic in terms of the political space we are working in. In taking it seriously, we encounter head-on some of the key difficulties that led to the compromise in the original 1951 Refugee Convention – which protects the right to travel without authorisation for refugees.

For this to be fair and accessible to enough people for it to matter – for it to be a real alternative to irregular crossings – any pre-approval checks would need to be light touch. That’s unlikely, and there are real risks that unaccountable decisions are made that limit the visa’s utility. The Swiss, for example, offer a humanitarian visa that refugees can apply for from outside Switzerland, but it is only very rarely granted; less than 100 approvals were given in 2022. If the UK were to be as selective behind the scenes as the Swiss then such a programme would solve precisely nothing. At the same time, introducing judicial oversight and other human rights safeguards to decisions made outside UK territory also becomes complex, expensive, and politically sensitive for the sovereignty of our neighbours very quickly. This would not be an easy plan to implement.

No substitute for a fair and functioning territorial asylum system

The tension between a scheme that fits the political limitations of what is deemed ‘sensible’ and what might actually work is exposed to a greater or lesser extent in all of these. A numerical cap and a focus on the ‘particularly vulnerable’ – which is somehow more than the inherent vulnerability of being a destitute migrant without a visa – result in schemes that are not realistic alternatives to most people making small boats crossings. Meanwhile, schemes aimed directly at those already in Europe would almost certainly result in systems that are too restrictive and too cumbersome to truly solve the issue.

All of these proposals might reduce harm. But none will make a functioning and humane territorial asylum system in the UK obsolete, because none will eliminate the need for some people to travel through irregular means. There will always be people attempting to cross – an act permitted under the Refugee Convention, of which the UK is a signatory – and thus we will always need a territory-based asylum system ready and waiting for when they come.

At present, extending the generosity shown to Ukrainians to refugees from other countries is deemed politically impossible. As long as the dominant political consensus even among progressives remains geared towards appeasing anti-refugee positions, rather than shifting them, political energies may well be wasted on humanitarian visas.

I, for one, have decided our energy is better spent defending the rights of those who are still making the irregular journeys, until we are willing to countenance borders open enough to make those journeys truly unnecessary.