Examination of Witness

Nationality and Borders Bill – in a Public Bill Committee at 3:15 pm on 21st September 2021.

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Tony Smith gave evidence.

Photo of Siobhain McDonagh Siobhain McDonagh Labour, Mitcham and Morden

We will now hear evidence from Tony Smith, from Fortinus Global Ltd, who is joining us virtually. We have until 4.30 pm. Could the witness please introduce himself for the record?

Tony Smith:

Good afternoon, everybody. My name is Tony Smith. I am now an independent international border management consultant, but I am probably better known as a former director general of UK Border Force, with 40 years’ experience of working in the Home Office in immigration and border applications.

Photo of Bambos Charalambous Bambos Charalambous Shadow Minister (Home Office)

Q Mr Smith, thank you very much for agreeing to give evidence today. We very much welcome your insights, with your many years of experience. The premise of the Bill is to fix the broken asylum system. You have mentioned your 40 years of experience, and some of that was as an immigration caseworker, I understand. I just wondered what your ideas were about what needs to be fixed to fix the broken asylum system and whether you think the Bill achieves that.

Tony Smith:

I think there is a broad consensus that the system is broken. I spent a great many years working in the areas of immigration enforcement, border control or immigration control, and asylum. I think what has happened recently has been a new method of gaining entry to the UK. This channel crossing was not an issue in my time. I retired in 2013, and at that time most of our energies were devoted to securing the port of Calais and preventing illegal migrants from concealing themselves in vehicles, to reduce that route.

In some respects, we have been victims of our own success, in that the smugglers will not give up; they constantly try new methods to get around our controls. This method has been used only in the last two or three years; they have found a gap in our defences. I think, therefore, the Bill is right to try to distinguish those asylum seekers that enter in this way—coming across the English channel in small vessels and claiming asylum on arrival—many of whom have spent a good deal of time in another safe third country, from those that are being evacuated by the UNHCR or through the Afghan programme. I think the Bill does that. It does attempt to distinguish the method of entry by redefining article 31 of the refugee convention, and to distinguish those people that are immediately fearing persecution from those that are not, so that we can get back some form of control of that part of our border, which at the moment I fear we have lost.

Photo of Bambos Charalambous Bambos Charalambous Shadow Minister (Home Office)

Q You mentioned people coming in via lorries. Clearly, that is still going on. It is not just the channel crossings that are the issue; it is also people who would be coming in via that route.

Tony Smith:

Yes, but as I say, I worked in senior positions in the immigration service when we had our really big asylum influx, which was in 2001. I am afraid corporate memory in the Home Office is not all that it might be, but at that time we were on the cusp of introducing the juxtaposed controls in northern France, because over 100,000 came in 2001 and the Government of the day saw it as a priority to reduce asylum intake from France. The effect of the juxtaposed controls was that by moving the UK border to Calais, it was not possible to claim asylum in the UK, because the applicants were not within the jurisdiction, so people were originally coming on forged passports—initially by air and then by ferry—and claiming asylum. Once we introduced those measures, they resorted to concealment in vehicles. We were then able to establish an agreement with our friends in France that we would have a British control zone in France, which would enable us to conduct our own searches in the UK zone. Subsequently, I was involved in a lot of the berthside checks to prevent people pervading through the fences and getting on to the vessels berthside.

We did a lot of work to secure that part of the border and in collaboration with our colleagues in France. That worked in terms of the targets, which were to reduce asylum intake via these methods, coupled with other measures that were taken, such as the third country unit to return people to safe third countries. We had the detained fast track system for manifestly unfounded cases. A lot of these things were tried previously and did work to an extent. As I say, the maritime environment is an extraordinarily complex one, as the Committee will no doubt be hearing, in terms of the complexities of international law and what we can do in our domestic law to manage that. I do think the attempt is a bold one to make this distinction, because I think we are conflating two different issues here, in terms of people who are travelling across between two safe third countries, and those that are genuinely in need of resettlement—of whom the numbers far outweigh the levels that the western world is prepared to take, I am afraid.

Photo of Bambos Charalambous Bambos Charalambous Shadow Minister (Home Office)

Q You mentioned the juxtaposed controls from 2001. That was done in co-operation with France, but clearly things seem to be very different now. I just wondered what your take was on the need for international co-operation to resolve the issue of illegal migration.

Tony Smith:

After the first signs of Brexit, we did have an APPG, more on freight rather than people, about what we were going to do about the border with France. I participated in that with some French officials and a number of MPs. The ending of free movement is in itself a significant challenge for that border. There were certainly some overtures from French politicians that they wanted not just to retain the juxtaposed controls but to work with us on joint enforcement measures because they really did not want international organised crime groups working in the Hauts-de-France region. Nor did they want large numbers of irregular migrants, shall we say, who are already in the Schengen zone––as you know, there are no borders in the Schengen zone––effectively migrating into the Hauts-de-France in the hope of being able to get across to the UK.

I did think there was an element of goodwill there, in terms of continuing to work with them, and we have seen some of that. We have persuaded the French police to conduct checks on the beaches and to prevent people boarding small vessels to get across. The difficulty we have is that once they are seaborne, the French position is that they will not intervene because they see this as a search-and-rescue operation, which is covered by international conventions. The migrants do not want to be rescued by the French police or coastguard because they would be taken back to France. They want to be rescued by the UK Border Force. For the UK Border Force, our primary mission at sea ought to be the preservation of life on both sides. Once we bring people aboard a Border Force vessel, they are within our jurisdiction, they can claim asylum and that just fuels the business model that the human smugglers are exploiting.

Photo of Bambos Charalambous Bambos Charalambous Shadow Minister (Home Office)

Q On the Border Force issue, what the Bill suggests doing is pushbacks, which many people would agree would be a dangerous activity. What are your thoughts about pushbacks and how that sits with maritime law?

Tony Smith:

I think it is highly dangerous. I am in touch with former colleagues from the Australian Border Force, which is often held up as a model for pushbacks. That was an entirely different model from the one that we are proposing. These are dangerous waterways and very vulnerable vessels. I fear for the worst. We have already had drownings. They are not as well reported as they should be but we have had them. We do not know how many, of course, because bodies have not always been retrieved. We will certainly see the smugglers resort to tactics, as we saw in Australia, such as vessels literally being holed so that they sink and lifejackets being thrown overboard in the trust, hope and expectation that those on board will then be rescued, which we have an international duty to undertake.

The only real way out of this is to come to an accommodation with the French Government, which I have been advocating for some time. There is provision under article 98 of the UN convention on the law of the sea for countries to establish regional arrangements, so it is possible, with political agreement with France, that we could have joint patrols on the English channel. We could have British officers on their vessels and they could put French officers on our vessels, but the premise would be that if you are returned to either side, there is no risk of refoulement because both countries are signatories to the 1951 refugee convention and you would get a full and fair asylum hearing on either side. I do think that is possible, but there is a reluctance on the part of the French Government to go down that road at the moment because they have significant immigration problems of their own. They cannot control their own southern border because they are part of the Schengen group and there is a significant lobby in France saying, “Why would we stop people crossing to the UK when we have plenty of irregular migrants already coming into France?”

Photo of Anne McLaughlin Anne McLaughlin Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Immigration, Asylum and Border Control)

Q Good afternoon. You have already answered some of what I was planning to ask you about. I read recently that you said the preservation of life should be the UK’s top priority. You have repeated that today, so I do not need to ask you the question about whether you support the pushing back of children, men and women who arrive in boats, because you clearly do not.

You talked about Australia, which I was going to bring up. I am sure I read recently that Australia also criminalised those who rescued people who were seeking asylum and arriving by boat, but made the exception that if the vessel was not seaworthy they would not be criminalised. I think that is what you referred to when you talked about the traffickers putting holes in the boats so that they became dangerous. That sort of thing assists traffickers now that they know what to do. First, would you caution the UK against making that caveat and perhaps urge it to drop the pushback thing altogether? Would you caution against the criminalisation of people who rescue people at sea?

Tony Smith:

We could spend a lot of time talking about the Australian model, which we do not have, but you are talking about a much, much longer stretch of water there. The Australian Border Force—I was down there helping it to set up—took the view that its maritime response was significantly different from ours. The vessels it deployed are significantly different from the UK Border Force cutters. The cutter fleet that we have in the Home Office are legacy Customs cutters. They are not designed to bring people ashore or to process people. They were even processing people on some of the Australian vessels to determine whether they were admissible to the asylum system before they brought them ashore. In the end, they invested in vessels of their own. They could then move the individuals from the unseaworthy vessels that they were encountering into their own vessels that they had purchased and escort them back to Indonesian waters. There was a significant investment by the Australian Government in doing that, which did work, but trying to compare that with what we see on the English channel is a different question.

Yes, of course we should preserve life, and I think the French should do that, too. There is an obligation on both sides of the channel for us to work together to find a way to stop human smugglers. The current model simply demands, “You pay €5,000 to me and I will put you in an unseaworthy vessel, and I really don’t care whether you drown or not because I have got my money.” I am afraid that is the way the mind of the human smuggler operates. They are getting the upper hand, we are seeing numbers going up and we will see more drownings. It is difficult to lay this at the door of the UK Border Force, who have a lot of other pressures on their resources at the moment.

We need to find a way, if we can, of getting common sense to prevail on a joint strategy with France. We already have a significant number of bilateral treaties with the French that have survived Brexit and that would enable us to fix this problem, but I do not think we have been able to find anybody in a senior position in the French Government who would go that far.

Photo of Anne McLaughlin Anne McLaughlin Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Immigration, Asylum and Border Control)

Q My second and final question is on international relations. The UK lags behind other European countries in terms of numbers. The British Red Cross said that we were the 17th highest in terms of the number of people that we took in. The Bill basically says to the French, among others, “Not in my backyard—your problem”. What does that do to international relations and what could the UK Government do? I accept what you say about other Governments having to come into these bilateral agreements, but what could the UK Government do to reach out to other countries in Europe to try to work on this together?

Tony Smith:

I would dispute those figures. We are probably about fifth in Europe in terms of asylum intake, but you are right that other countries have more asylum applications every year than we have. That is not necessarily because those numbers have been invited by the EU to go and live there. It is because they are unable to control their own external frontier. Because of the Schengen arrangement, asylum seekers can choose where they would like to go. Many drift north to Scandinavia, Germany, Holland or France, where they would rather be than in some of the southern or eastern European states.

The EU has its own difficulties in determining the allocation of asylum seekers across the Schengen zone because they do not agree among themselves about how they should be distributed. The bigger question is not necessarily a European one but a global one. No doubt you will hear evidence from experts on this. The need for international resettlement is a huge problem. We have seen it in Afghanistan; we have climate change; and we have migratory pressures coming up from South America to the US border. People are going to continue to move in great numbers over the next 20 or 30 years. The question is how the western world is going to cope with that.

I am quite a big fan of the refugee resettlement programme. UNHCR has been going out to western countries for some years saying, “We have 80 million people displaced, and 40 million in different countries in our camps already. These are refugees who have already fled war zones whom we would like you to take.” Even though we were taking only about 5,000 or so, we are still third highest in the world, so we are not really getting to grips with the global challenge of resettling refugees through the resettlement route. It has picked up a bit since Afghanistan, and we are doing more. There is certainly evidence that we are trying to do more, and I think we could become global leaders on refugee resettlement programmes, but it is going to be difficult politically for anyone to sell that when we are seeing uncontrolled migration across the English channel.

It is finding the balance. How can we help to contribute to genuine resettlement for genuine refugees, but at the same time take back control of our borders, which is clearly the Government’s stated intent?

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

Q Is it reasonable to think, based on your many years of experience, that if we do nothing—if we just stand back from the challenge of illegal crossings—the number of crossings will increase and crossing will become even less safe? Do you think that the principle of deterrence is important in all this?

Tony Smith:

I do think that. It is absolutely important in all this. While I would not defend the turn back strategy, I can understand why the Government are looking at those kinds of measures to stop the boats. It must be extremely frustrating not to be able to do anything about the ever-increasing numbers, particularly when a succession of Home Secretaries have come in saying that that was what they would do. A number of my successors—civil servants—have given evidence to the Home Affairs Committee, saying that they were going to make the route unviable. I am afraid it is not within their gift to make the route unviable within the current frameworks. One would hope that the new legislation would change things. It certainly changes the dynamic. We can now say, “We know that you arrived by this route. We know that you are not immediately fleeing persecution.”

I am not a big fan of the criminal justice system for migrants. It has not really worked. I am a fan of it for smugglers and facilitators, but putting migrants in prison is not necessarily going to be the answer and will lead to more challenges. The question is how we disrupt the smugglers and break that business model. The only way is to start seeing people going back to France. Then people will see that there is no point putting their life at risk in a small dinghy. There will be no point in more and more of them spreading up to Calais because that business model is broken. The big difficulty for the Government is how to persuade the French that we ought to have a policy like that and negotiate an agreement, and how to counterbalance that with the other problem of significant numbers of people around the world seeking resettlement. How are we going to contribute to responding to that?

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

Q Notwithstanding what you have already said about collaboration between us and the French to tackle this, what assessment have you made of the work that is already in train to try to improve the situation? Do you think it has improved the situation somewhat?

Tony Smith:

Without a doubt. I support the investment of resources in France, and that is something that we have been doing for a long time now. The French could legitimately say, “Actually, why would you not help us to contribute to border security?” Let us not pretend that the French operational arms, including the police aux frontières, the douanes, the various coastal agencies—I used to talk to them regularly when I was in the job—are not supportive of preventing criminality at an operational level.

We can be quite pleased with the work that we have done to at least try to disrupt the smuggling gangs. Quite a few have been prosecuted on the French side, albeit, sadly, more the middle men rather than the big fish who are behind human smuggling gangs. You will hear from other witnesses more qualified than me to tell you about that level 3 criminality, but it is really difficult. How do we disrupt the business model? It is about deterring people from coming. We owe a duty under the 1951 refugee convention to give refugee status to those who are genuinely in need, but I am not sure that it is the same duty for those who are arriving in this way, from a fellow original signatory to that convention, than those coming through evacuation processes such as we have seen recently in Kabul.

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

Q Mindful of the breadth of your professional experience in previous roles, how crucial do you think the streamlining of the processing of applications is to tackling some of these challenges?

Tony Smith:

We lived through this before. We had something called the new asylum model when I was in the UK Border Agency, before taking the top job in the Border Force. Previously, I was regional director for UKBA London and the south-east, which meant that my teams were the ones who were processing asylum arrivals coming into the country. I was actually responsible for removals.

Yes, we did have targets in the Home Office in those days for enforcement. It was part of my mission to ensure that those who did not qualify to stay, either because they had arrived under safe third country rules, or they were coming on a manifestly unfounded route, were sent back. The trouble is we have seen a good deal of judicial overreach by the European Court of Justice, and significant interpretations and European directives, which kind of hindered those arrangements on returns. We have now got to a point where we are not really returning anybody who is coming across on these boats, and people notice that. If we do not start returning people, the numbers will continue to rise. We need to find a way of segmenting those applicants who we know have a genuine claim for asylum in this country from those who have probably been in Europe for a long time and may have had applications for asylum rejected—they have had a notice de quitter from Schengen, sometimes two or three notices—who are not genuine asylum seekers but who would just like to come to live here. That is not effective border control.

It is going to be really, really difficult, but I applaud the authors of the Bill, because it finally gets to grips with the difficulty of the way we have interpreted the 1951 refugee convention and put up what I think is the right interpretation of it in not conflating two different arguments, which is human smuggling across the English channel by criminal gangs, putting lives at risk, and the genuine need to resettle refugees from different parts of the world.

Photo of Jonathan Gullis Jonathan Gullis Conservative, Stoke-on-Trent North

Q Thank you, Ms McDonagh. We are really grateful to hear that more needs to be happening with the French, and recent events seem to be improving matters. Mr Smith, why do you believe that people are choosing to come to the United Kingdom rather than claiming asylum in France, Greece and other parts of the European Union?

Tony Smith:

That is a great question. It is called the pull factor. A number of books have been written by people probably better qualified than I am that talk about what that pull factor is. I think there are number of reasons why people would quite like to live in the UK rather than in mainland Europe. Personally, I think the main one is communities. We have a significantly diverse range of communities across the UK where people can feel comfortable in terms of getting the support they need. We are generous—I would not say very generous—in our treatment of asylum seekers. We have hosted conferences in places like Hungary and Croatia—countries where, if you were to ask asylum seekers, they would probably say that you do not get a very good deal from the Government who are supposed to be protecting your welfare, whereas you will get that in the UK; you will also get good legal representation and a very full hearing. These are all things that we should be very proud of, but I think inevitably it does mean that more people want to come to the UK.

The other element is language. English is the second language for many, many people from different parts of the world, which means that this is still—you might not believe it—a very desirable place to come and live. People are prepared to pay a good deal of money to get here on the basis that not only would they have a better life if they came here, but their broader family would have a better life. It is a genuine aspiration for a lot of people.

That is the nature of immigration and border controls. There will be a dividing line. You are going to create legislation and a set of rules. You are going to get people in front of you who do not want any border at all and who think we should let everybody in. You are going to get other people here who want to build a fortress around Britain. That has always been the case, but in 40 years at the Home Office—I was one of those civil servants who stayed in the Department; I did not bounce around Whitehall like they do nowadays—I never once worked for any Government who said that they were prepared to approach a fully open border and free movement across our borders. In fact, the vast majority have sought to tighten up our immigration and borders system, or at least to make it firmer but fairer.

We cannot lose sight of the firmness bit. There will be a need to arrest people, and there will be a need to deport people. That does not sit well, does it? It does not feel nice, but if you are going to have an effective border control, you have to be able to enforce your laws. At the moment, there is a feeling that with this particular cohort, we are not really doing any enforcement at all.

Photo of Jonathan Gullis Jonathan Gullis Conservative, Stoke-on-Trent North

Q I can certainly assure you that in Stoke-on-Trent North, Kidsgrove and Talke we are keen to see more enforcement, because people are getting sick to death of the boats that are constantly landing on the English shore. My final question is this. We know that out of the illegal economic migrants crossing the English channel, 70% of those who are landing are males aged between 18 and 35. Why is this particular group so attracted? Why are they travelling alone in this instance?

Photo of Siobhain McDonagh Siobhain McDonagh Labour, Mitcham and Morden

Mr Smith, if you could hold your answer to that question, I am going to try to bring in Paul Howell as well.

Photo of Paul Howell Paul Howell Conservative, Sedgefield

Q Thank you, Chair. This question is similar to one that I asked a previous witness. Mr Smith, what aspects of the Bill would you particularly welcome, and what do you feel needs to be more robust, or indeed less? Could you cover that at the same time?

Tony Smith:

I particularly welcome the distinction between those people who are entering the country from safe third countries, with the new interpretation of article 31 where we can actually test whether they face an immediate fear of persecution in the circumstances under which we find them, and those who are genuinely fleeing persecution coming through refugee resettlement routes. I think that is the part that I favour the most.

The other thing we will have to consider is whether we will have to establish proper arrangements for the reception of people coming via this route. The facilities in Tug Haven—I do not know whether the Committee has been there—are appalling. We have a marquee there and we have Border Force officers changing nappies and ordering pizzas because we simply do not have the infrastructure to cope with these numbers. Other countries at least provide sensible, safe accommodation. You are going to hear lots of evidence about the circumstances at Napier Barracks. There is a real problem in the Home Office right now about being able to manage the proper reception of these people, whether or not we allow them to stay.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Home Affairs)

Q Thank you, Mr Smith. As ever, it is very interesting to hear from you. I have two quick questions. I am slightly confused because on one hand, you speak about the necessity of deterrence, but the way you want to go about deterring people from making the crossings is through removals to France. That is exactly what we have lost because of Brexit and the end of the Dublin regulations at the start of the year, and this Bill does not bring us any closer to removals to France. On the other hand, you think that criminalisation is not the right way to go, but that is what is in the Bill; it criminalises people who make those crossings. Although I understand your logic, I do not understand how that takes you to supporting this Bill.

Photo of Siobhain McDonagh Siobhain McDonagh Labour, Mitcham and Morden

Sorry, Stuart, but I am going to break in here so that we can get an answer. Mr Smith, you have 30 seconds.

Tony Smith:

The Dublin convention never worked. It certainly did not work with France even when we were in the EU. In fact, we were in the EU when some of the boats started coming. They still would not take anybody back because it relied on a flawed policy framework. I stand by what I say about the criminal justice system, because we have tried this many times before and people do not fear prison. What they fear is not achieving their ultimate ambition, which is to get settlement in the UK. That is where we need to focus our minds.

Photo of Siobhain McDonagh Siobhain McDonagh Labour, Mitcham and Morden

I am afraid that brings us to the end of the allotted time for the Committee to ask questions. I thank our witness on behalf of the Committee and we move on to our next witness.