Border procedure (border and transit zones)
In the UK there is no provision for asylum decisions to be taken at the border. An application for asylum may be made at the port of arrival, and immigration officers from the UK Border Force may carry out the screening interview, but then refer the claim to UKVI (see Regular Procedure). The substance of the claim is not examined at the border.
If a person claims asylum, immigration officers grant temporary admission or, since January 2018, immigration bail, to enable the claim to be made. It is not an immigration status and therefore there are no rights attached to the admission. It is analogous to release from detention on licence. Detention in an airport is limited to relatively short periods (less than 24 hours). Short-term holding facilities (STHF) in airports are not subject to the usual rules which govern immigration detention, but are inspected by the government’s Prison Inspectorate.
The Equality Act 2010 permits immigration officers to discriminate on grounds of nationality if they do so in accordance with the authorisation of a minister. This discrimination may include subjecting certain groups of passengers to a more rigorous examination. Ministerial authorisations are made on the basis of statistical information of a higher number of breaches of immigration law or of adverse decisions in relation to people of that nationality. The statistical basis is not published. Immigration officers have the power to refuse entry at the border unless the passenger has a valid entry clearance or claims asylum. It is not known whether and if so how many people sent back from the border wished to claim asylum but did not say so to immigration officers or were de facto not given an opportunity to do so. In 2019, 21,704 people were refused entry at the UK port of whom 8,691 were at the juxtaposed controls (see below) and were denied access to the UK.
The UK also operates juxtaposed controls in France and Belgium. In the control zones in France and Belgium, no asylum claim can be made to UK authorities, and the acknowledged purpose of these agreements with France and Belgium was to stop people travelling to the UK to claim asylum. This was reiterated by the statement from the Home Secretary following talks between the leaders of France and the UK on 18 January 2018. Of the 8,691 people turned back in control zones in 2019, it is not known how many wished to claim asylum. There is little or no information about any attempted claims, and whether those who attempt to claim are referred to the authorities of the state of departure, as the regulations require.
During an investigation by the Children's Commissioner for England in 2012, the Home Office officials disclosed the 'Gentleman's Agreement'. This operates in relation to people intercepted on landing in the UK who are considered to have made an illegal entry and who do not say that they wish to claim asylum. The agreement is between the UK and France and obliges France to accept the return of such passengers if this can be effected within 24 hours. Returns under the Gentleman's Agreement are carried out without a formal refusal of leave to enter. Following the Commissioner's discovery that this was being applied to young people, the practice was stopped in relation to acknowledged children. This agreement still applies to adults and those who appear to be adults. The 2003 Le Touquet Treaty, which is still applicable, states that anyone claiming asylum at the juxtaposed controls will be dealt with by the French authorities.
The ministerial authorisation to discriminate in refusing leave to enter also takes effect in control zones.
Therefore, although there is little or no substantiated evidence of refoulement taking place at the border, current UK policy and practice creates a risk of this occurring. However, further research would be required in order to assess this accurately.
Immigration Bail replaced temporary admission on 15 January 2018 (see Home Office guidance document, available at: http://bit.ly/2FTmf50). Many guidance and policy documents still refer to Temporary Admission.
Section 29 and Schedule 3, Part 4 Equality Act 2010.
Home Office, Immigration Statistics admission tables, Quarter 4 2019.
In the case of France, this is stated in Article 4 of the Additional Protocol CM 5015 to the Protocol between the United Kingdom of Great Britain and Northern Ireland and the French Republic concerning Frontier Controls and Policing, Co-operation in Criminal Justice, Public Safety and Mutual Assistance relating to the Channel Fixed Link, Cm 2366, signed at Sangatte on 25 November 1991. It is not explicit in the Belgian agreement.
Home Office, Immigration Statistics.
Article 9 Le Touquet Treaty, available at: http://bit.ly/2BSdpVx.
Para 17(4)(A) Ministerial Authorisation, para 4; Schedule 3, Part 4 Equality Act 2010.