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Rhiannon Victoria Maher of The Open University explores how AI and surveillance tech interact with the 2023 Illegal Migration Act to create a hostile border. Artificial Intelligence in Asylum Governance was the Best in Category winner for the 2024 vLex International Writing Competition category: Immigration.

Artificial Intelligence in Asylum Governance

by Rhiannon Victoria Maher

From the crisp white pages of Gratz’ 2017 novel Refugee, the story of a twelve-year-old refugee, Mahmoud, comes richly to life. Themes of invisibility and surveillance drip throughout the novel, glazing Mahmouds’ interactions with the world.

“The vacationers dropped their voices… They were supposed to be on holiday, seeing ancient ruins and beautiful Greek beaches, not stepping over filthy, praying refugees. They only see us when we do something they don’t want us to do, Mahmoud realized” (1).

Outside of the realm of fiction, the themes of invisibility and surveillance not only garnish the interactions of real-world refugees, but also leaven their governance and legal rights. Notably, these themes seep their rich glaze over the intersection of technology and law that dominates considerations of the border of the future (2).

The state border is the locus of a number of vulnerabilities. Issues such as national security, asylum and immigration, trafficking, smuggling, and criminality all percolate here 2. The border of the future will be no different, tackling these vulnerabilities whilst attempting to balance the human rights obligations of the state. The most apposite of these rights, the right to seek and enjoy asylum, finds its home in Article 14 of the Universal Declaration of Human Rights 3, conferring non-refoulement and non-rejection obligations on the state 4.

Artificial Intelligence’s (‘AI’) will enjoy an unequivocal place in the future governance of the right to seek and enjoy asylum. The UK government is already comfortable using AI in eight Whitehall departments, and has recently turned to Anduril, a specialised US defence start-up to use AI to stop small boat crossings 56. Of course, the use of AI in asylum-governance will be one-sided. It will be deployed on those arriving to the UK, particularly on so-designated ‘small boat migrants’, compounding an already formidable imbalance of power between a nation state and an individual seeking asylum4. The deployment of this technology will be glazed too with the themes of invisibility and surveillance. The government intends to use this technology with an already constructed surveillance tower in Dover, assuring an all-seeing, all-surveilling eye on the border (5). The AI itself will be employed, assisted by the output of this surveillance tower, to process the asylum eligibility of refugees, particularly that of the inveterate small boat migrant. It is this technological dyad- of AI and surveillance technology- that has been designed to co-mingle with the Illegal Migration Act 2023 to create a border of the future that is hostile to the right to seek and enjoy asylum 67.

The Illegal Migration Act 2023 confers a duty on the Secretary of State to construct the removal of persons who cross the state border in breach of immigration control, including all small boat migrants, without mitigation. Refugees who seek asylum this way will automatically have their claims to seek asylum in the UK deemed inadmissible7. Real-time data assessing the impact of the Act on the right to seek asylum is vacant as the duty of removal has not yet come into force, but predictions enumerate a dystopic and indiscriminately cruel policy 8.

Since 1st Jan 2023, 24,830 small boat migrants have crossed the UK border. Statistics, only available for the first two quarters of this period, show that 7,349 small boat migrants raised asylum applications, compared to the mere 103 who did not 9. Per the Home Office, three quarters of people who have crossed the English Channel this year would be recognised as refugees had their claims been processed. 54% of refugees came from five countries alone - including Eritrea and Afghanistan which confer grant rates of over 97% for asylum claims 10. Under the Act, such refugees will be barred from claiming asylum in the UK. Indeed, an impact assessment from Refugee Council estimates that up to 45,000 children will face being locked up with their asylum claims deemed automatically inadmissible in the first three years of the Acts deployment 8. With this understanding of the Illegal Migration Act, the duo of AI and the Dover surveillance tower are seen in a novel and disquieting light. The aim of the dyad will be to survey, identify and automatically expunge a refugees’ claim to seek asylum in the UK.

Even the interplay between the Illegal Migration Act and this technology is dyed with the contrast of invisibility and surveillance. The Act itself has faced polemic criticism and surveillance since its conception; being called ‘inhumane and unworkable’ 10, an Act that 'significantly erodes human rights' 11, and ‘a dark day’ 12 by internationally recognised humanitarian organisations. Contrastingly, the technology leveraged to facilitate its aims has slipped by invisibly, avoiding much of the scrutiny. Of legislative scrutiny, it has received effectively none and compared to other areas of governance, the use of AI at the border has received little policy attention at all. Whilst academics are calling for an increase in scrutiny 2, the ripples of these concerns are not felt much further than that.

Ultimately, it is difficult not to overlay the real-world developments intersecting technology and law with the fictional words of a twelve-year-old refugee. Mahmoud’s experience returns to us with new signification.

‘They only see us when we do something they don’t want us to do.’

It is a cruel dichotomy that when making their small boat crossing of the border of the future, the refugee will be closely surveilled, but when asking for help through the asylum system their claims will be automatically expunged: the refugee invisible. The dyad of AI and the Dover surveillance tower, along with the Illegal Migration Act 2023 conspire in this way, to step over the ‘filthy, praying refugee’. This brew of law and technology only sees the refugee when he does something they don't want him to do. The Illegal Migration Acts’ automatic conferral of a duty to remove the refugee, in particular, shows that the law refuses to see the desperation, endangerment and vulnerability that forces the refugee into a small unsteady boats.

References

1 Gratz, A. (2017). Refugee. Gosford, Nsw: Scholastic Australia.

2 Forster, M. (2022). Refugee protection in the artificial intelligence era A test case for rights. [online] Available at: https://www.chathamhouse.org/sites/default/files/2022-09/2022-09-07-refugee-protection-artificial-intelligence-era-forster.pdf [Accessed 26 Nov. 2023]

3 Universal Declaration of Human Rights (UNGA res. 217 A(III), 10 Dec. 1948).

4 United Nations Human Rights Commissioner for Refugees and Inter-Parliamentary Union (2017). A guide to international refugee protection and building state asylum systems. Handbook for parliamentarians no. 27, 2017. [online] Available at: https://www.unhcr.org/uk/media/refugee-protection-guide-international-refugee-law-handbook-parliamentarians [Accessed 28 Nov. 2023].

5 Stacey, K. (2023). UK risks scandal over ‘bias’ in AI tools in use across public sector. The Guardian. [online] 23 Oct. Available at: https://www.theguardian.com/technology/2023/oct/23/uk-risks-scandal-over-bias-in-ai-tools-in-use-across-public-sector [Accessed 26 Nov. 2023]

6 InfoMigrants. (2023). UK signs contract with US startup to identify migrants in small-boat crossings. [online] Available at: https://www.infomigrants.net/en/post/48326/uk-signs-contract-with-us-startup-to-identify-migrants-in-smallboat-crossings [Accessed 26 Nov. 2023]

7 Illegal Migration Act 2023 chapter 37

8 Refugee Council (n.d) Briefing. Illegal Migration Bill -Assessment of impact of inadmissibility, removals, detention, accommodation and safe routes Background to the bill. Available at: https://www.refugeecouncil.org.uk/wp-content/uploads/2023/03/Refugee-Council-Asylum-Bill-impact-assessement.pdf. [Accessed 26 Nov. 2023]

9 Home Office. (2023). Irregular Migration, year ending September 2023. Irregular migration detailed datasets. Dataset. Home Office. Available at: https://www.gov.uk/government/statistical-data-sets/irregular-migration-detailed-dataset-and-summary-tables#detailed-datasets [Accessed 26 Nov. 2023]

10 Refugee Council. (n.d.). What is the Illegal Migration Act? [online] Available at: https://www.refugeecouncil.org.uk/information/what-is-the-illegal-migration-act/ [Accessed 26 Nov. 2023]

11 United Nations (2023). _UK Bill ‘significantly erodes’ human rights and refugee protections, _UN agencies warn. UN News [online] Available at: https://news.un.org/en/story/2023/07/1138812 [Accessed 26 Nov. 2023]

12 British Red Cross. (n.d.). How the Illegal Migration Bill affects vulnerable communities. [online] Available at: https://www.redcross.org.uk/stories/migration-and-displacement/refugees-and-asylum-seekers/what-is-the-illegal-migration-bill [Accessed 26 Nov. 2023]