Papers, Please! – Page 31 – The Identity Project

Oct 03 2016

How the DEA uses travel company spies to confiscate travelers’ cash

A report by the Office of the Inspector General (OIJ) of the U.S. Department of Justice (DOJ) sheds more light on how the Drug Enforcement Agency (DEA) pays workers for airlines, Amtrak, bus companies, and package delivery services to spy on their customers, troll through reservation and shipping records, and finger travelers and senders and recipients of packages to the DEA in exchange for a share of the cash which can be seized and “forfeited” to the government even if no drugs are found and no criminal charges are brought.

This practice was first reported in August 2016 by Brad Heath in USA Today, based on case-by-case review of court filings describing the basis for DEA searches that led to “civil forfeiture” proceedings. And the DOJ OIG had released brief interim summaries of its investigations into DEA relationships with one Amtrak employee and one TSA employee who were paid to inform on travelers.

The new OIG report released last week provides much more detail about the scope of the DEA’s use of travel and transportation staff as paid “confidential sources” to target travelers and parcels for cash seizures on the basis of travel reservations and shipping records. The OIG found that the DEA is paying employees of Amtrak, airlines, bus companies, and other transportation companies millions of dollars for individual tips and copies of entire passenger manifests:

[DEA] Special Agents have various ways of receiving these “tips,” but generally receive the information on a daily basis via email or text message, some of which are sent to government accounts and others to non-government private accounts that are established and controlled by the Special Agents. Additionally, we found that although some Special Agents estimated receiving up to 20 “tips,” or passenger itineraries, per day from their… commercial airline confidential sources, the DEA does not maintain a record of receipt of the totality of the confidential source “tips.”….

[S]ome Agents requested that sources provide them with suspicious travel itineraries that met criteria defined by the Agents, and in some cases requested entire passenger manifests almost daily….

Sep 27 2016

Proposed laws would expand travel controls from airlines to passenger railroads

Legislation has been introduced in both the USA and Belgium to subject rail travelers to the same sorts of travel surveillance schemes that are already being used to monitor and control air travelers.

If these proposals are enacted into law, passenger railroads would be required to collect and enter additional information such as passport or ID numbers and dates of birth (not currently required or routinely included in US or European train reservations) in Passenger Name Records (PNRs), and transmit rail travel itineraries and identifying information about passengers to the government, in advance.

As is already the case for all airline travel in the USA, including domestic travel, railroads would be forbidden to allow any passenger to board unless and until the railroad receives an explicit, affirmative, individualized, per-passenger, per-flight permission-to-board message (“Boarding Pass Printing Result”) from the government.

In both the USA and Belgium, the proposed legislation would create legal conflicts with civil liberties and human rights, and practical conflicts with railroad business processes and IT capabilities.

Sep 19 2016

Voter ID lawsuits have little effect on ID requirements

A federal judge is hearing arguments today on whether the state of Texas has complied with the District Court’s earlier rulings and a decision of the 5th Circuit Court of Appeals that portions of the Texas state law requiring specific government-issued ID credentials as a prerequisite to voting are unconstitutional.

Today’s US District Court hearing in Corpus Christi is only the latest skirmish in a nationwide legal war between advocates for ID requirements and advocates for voting rights.

Even judges who (wrongly) question whether travel is a legally protected right must recognize that voting is a fundamental right protected by law. So we might expect that voter ID laws and litigation would squarely and unavoidably pose the question of whether the exercise of rights can be conditioned on possession of ID.

Unfortunately, many of the court cases challenging voter ID laws have not reached that question. And to the extent that Circuit and District court judges have reached that question, they have been bound by bad Supreme Court precedent suggesting that even substantial restrictions on the rights of people who neither have nor are able to obtain ID are generally Constitutional. That these laws deliberately and unarguably discriminate against people without ID is not enough to make them unconstitutional, the Supreme Court majority has indicated, unless they can be shown to have been enacted with some other discriminatory intent (such as to discriminate on the basis of race, political party affiliation, or some other protected attribute). Voter ID litigation has thus been forced to focus on discrimination in the application of ID requirements, rather than their inherent illegitimacy as a precondition for the exercise of rights.

In the run-up to this year’s Presidential elections, Courts of Appeals have found such unconstitutionally racist and/or partisan discriminatory intent behind voter ID laws in North Carolina (4th Circuit), Texas (5th Circuit, en banc), and Wisconsin (7th Circuit). The election law project at the Ohio State University law school and the Brennan Center for Justice at NYU (which has been a friend of the court in some of these cases) have useful compendia of case documents and commentaries on these and other voter ID lawsuits.

These and other lawsuits challenging ID requirements to vote are continuing, but none of them are likely to be resolved by the Supreme Court until its current vacancy is filled. Any decisions by the Circuit Courts — even contradictory ones — are likely to be upheld by 4-4 vote of an equally divided Supreme Court, even if four Justices vote to review those lower court decisions. And in the meantime, any of those decisions not stayed by the lower courts themselves will presumably remain in force for the coming elections. Any application to the Supreme Court for a stay will probably also be denied by an equally divided court, as happened late last month with an application for a stay of the North Carolina ruling by the 4th Circuit.

So far, there don’t appear to be major conflicts between the Circuit Courts. Many state voter ID laws have been overturned. But the Supreme Court deadlock makes it impossible for the key Supreme Court precedent in Crawford v. Marion County Election Board (2008) to be reversed, no matter how many lower court judges write opinions urging it be reconsidered, like this one by US District Judge James D. Peterson in July of this year:

Wisconsin’s voter ID law has been challenged as unconstitutional before, in both federal and state court. In the federal case, Frank v. Walker, the Seventh Circuit held that Wisconsin’s voter ID law is similar, in all the ways that matter, to Indiana’s voter ID law, which the United States Supreme Court upheld in Crawford v. Marion County Election Board. The important takeaways from Frank and Crawford are: (1) voter ID laws protect the integrity of elections and thereby engender confidence in the electoral process; (2) the vast majority of citizens have qualifying photo IDs, or could get one with reasonable effort; and (3) even if some people would have trouble getting an ID, and even if those people tend to be minorities, voter ID laws are not facially unconstitutional. I am bound to follow Frank and Crawford, so plaintiffs’ effort to get me to toss out the whole voter ID law fails. If it were within my purview, I would reevaluate Frank and Crawford…

The Indiana law upheld by the Supreme Court in its Crawford decision required any voter who wasn’t able to show acceptable ID credentials at a polling place on election day to appear in person at the county courthouse, within 10 days after the election, to execute a declaration regarding their inability to obtain ID.

By definition, none of these people have driver’s licenses. In many cases, lack of ID and lack of mobility form a vicious circle: People can’t drive or fly without ID, but they can’t get ID without traveling to the state or city where they were born to obtain a birth certificate or other prerequisite documents. Many counties in Indiana and throughout the US have no public transit at all, while others have transit systems that serve only limited areas and routes. It’s hard to see how any court could characterize a requirement for non-drivers, especially those who reside in rural areas with no public transit, to get to the county seat during business hours (when friends or family who might be available to drive them are most likely to be working) within 10 days as only a “minimal” burden or restriction on the right to vote.

Not yet mentioned in any of these lawsuits, so far as we can tell, is the REAL-ID Act, which will make it even harder to obtain state-issued ID credentials and multiply the numbers of people disenfranchised by ID requirements for voting.

Voter ID case law, especially Crawford, doesn’t bode well for the right to travel without ID. If courts are willing to countenance such substantial restrictions on the acknowledged and clearly fundamental right to vote, they are likely to uphold even more onerous ID conditions on the exercise of rights that are less widely recognized, such as the right to travel.

Aug 29 2016

Restriction of movement is a punishment like banishment

A Federal Court of Appeals has found that the latest version of Michigan’s “Sex Offender Registration Act” (SORA), including restrictions on where registrants can live, work, or “loiter”, constitutes a form of punishment intended to inflict pain or unpleasant consequences. “More specifically, SORA resembles, in some respects at least, the ancient punishment of banishment,” according to the 6th Circuit Court of Appeals.

Both Federal and state governments have enacted a variety of misleadingly misnamed “sex offender registration” laws.

Despite being labeled as applying to “offenders”, these laws typically apply also to ex-offenders who have completed their entire sentence of incarceration, parole, and /or probation. These ex-offenders are subject to few legal restrictions except those of the “sex offender registration” laws and the no-gun list.

And while they are described as “registration” laws, these laws almost invariably require more than mere registration. This parallels the government’s typical euphemistic use of the term “watchlists” for what are, in fact, blacklists or blocklists.

“Registration” laws typically restrict and regulate the exercise of First Amendment rights and rights recognized by international human rights law, including the rights to freedom of speech and freedom of movement, of people who are required to register. In several states, these laws restrict free speech by prohibiting use of unregistered Internet access accounts or “identifiers” (whatever that means) by ex-offenders who are subject to these laws. In a growing number of states, these laws restrict freedom of movement and residence by prohibiting registrants from living or working within a specified distance of any school — a distance which, in a populated area with neighborhood schools, can prohibit registrants from legally living anywhere in a municipality or community, or force them to live in wilderness or wasteland encampments without water, sewer, or electric service in order to stay far enough away from any school.

As we have reported, a Federal District Court judge has issued a preliminary injunction prohibiting California from enforcing its requirement for registration of Internet service accounts and identifiers, and that injunction has been upheld by the 9th Circuit Court of Appeals. The lawsuit challenging the California law drags on, however, while the court keeps giving the state more time for its legislature to try to “fix” the law to make it Constitutional.

But in contrast to this judicial rejection of some “registration” laws that restrict ex-offenders’ free speech on the Internet, courts have upheld restrictions on registrants’ residency, employment, and movement against a variety of challenges. So we were especially pleased that last week’s opinion by the 6th Circuit in Does v. Snyder recognizes that both the restrictions on movement and those on Internet speech in the Michigan SORA amount to “punishment”:

SORA resembles, in some respects at least, the ancient punishment of banishment. True, it does not prohibit the registrant from setting foot in the school zones… But its geographical restrictions are nevertheless very burdensome, especially in densely populated areas. Consider, for example, this map of Grand Rapids, Michigan, prepared by one of Plaintiff’s expert witnesses:

Sex Offenders are forced to tailor much of their lives around these school zones, and, as the record demonstrates, they often have great difficulty in finding a place where they may legally live or work. Some jobs that require traveling from jobsite to jobsite are rendered basically unavailable since work will surely take place within a school zone at some point.

The John and Mary Doe plaintiffs in the Michigan lawsuit were convicted before the SORA law was enacted. The court found that, because the law imposed imposed retroactive “punishment” on the plaintiff, it was an unconstitutional ex post facto law as applied to the plaintiffs:

We conclude that Michigan’s SORA imposes punishment. And while many (certainly not all) sex offenses involve abominable, almost unspeakable, conduct that deserves severe legal penalties, punishment may never be retroactively imposed or increased…. As the founders rightly perceived, as dangerous as it may be not to punish someone, it is far more dangerous to permit the government under guise of civil regulation to punish people without prior notice. Such lawmaking has “been, in all ages, [a] favorite and most formidable instrument[] of tyranny.” The Federalist No. 84, supra at 444 (Alexander Hamilton)…. The retroactive application of SORA’s 2006 and 2011 amendments to Plaintiffs is unconstitutional, and it must therefore cease.

The court didn’t reach the question of whether the law would be Constitutional as applied to people convicted after its enactment, but did express strong doubts about how it would rule in such a case:

As we have explained, this case involves far more than an Ex Post Facto challenge. And as the district court’s detailed opinions make evident, Plaintiffs’ arguments on these other issues are far from frivolous and involve matters of great public importance. These questions, however, will have to wait for another day because none of the contested provisions may now be applied to the plaintiffs in this lawsuit, and anything we would say on those other matters would be dicta. We therefore reverse the district court’s decision that SORA is not an Ex Post Facto law and remand for entry of judgment consistent with this opinion.

Aug 22 2016

Wanna be Facebook friends with U.S. Customs & Border Protection?

Today we submitted formal comments to U.S. Customs and Border Protection objecting to its proposal to start asking visitors to the USA to list all their “social media identifiers”. USCBP (a division of the Department of Homeland Security) proposes to add this question to the I-94W form for international visitors arriving in the U.S., and to the online ESTA (Electronic System for Travel Authorization) application form for vistors form countries in the U.S. Visa Waiver Program:

Please enter information associated with your online presence—Provider/Platform—Social media identifier.” It will be an optional data field to request social media identifiers to be used for vetting purposes, as well as applicant contact information. Collecting social media data will enhance the existing investigative process and provide DHS greater clarity and visibility to possible nefarious activity and connections by providing an additional tool set which analysts and investigators may use to better analyze and investigate the case.

We’ve previously argued that the entire ESTA scheme is an illegal de facto visa requirement that violates the rights of foreign visitors to the U.S. But this proposal would make it even worse. Hundreds of individuals and more than two dozen organizations have already denounced this proposal. You can submit your own comments here until midnight tonight, Eastern time. If you agree with us that this is a terrible idea, feel free to endorse our comments or use them as a template:

We oppose this absurd and un-American questioning of foreign visitors to the U.S., and urge USCBP to withdraw this proposal.

Both freedom of speech and freedom of movement (“the right of the people… peaceably to assemble”) are recognized by the First Amendment to the U.S. Constitution. These rights are also recognized in Article 12 (freedom of movement) and Article 19 (freedom of expression) of the International Covenant on Civil and Political Rights (ICCPR), a treaty ratified by, and binding on, the U.S. In addition, Article 17 of the ICCPR recognizes a right to protection against “arbitrary or unlawful interference with … privacy … or correspondence.”…

The essence of human rights law is that these rights are recognized as universal rights to which all people are entitled regardless of their citizenship or nationality (if any). This proposal … treats foreign visitors to the U.S. as lacking these human rights, and thus implicitly as less than human… This would reinforce the impression around the world that the U.S. does not believe in or respect human rights, but regards these universal human rights as “privileges” granted by the government and enjoyed only by U.S. citizens. We do not want to live under such a government or in such a world…

Read More →

Aug 19 2016

An apology from the State Department

We got a pleasant surprise this week: a phone call from Eric F. Stein, the head of the State Department’s FOIA-processing office.

Mr. Stein’s name and signature appeared on a bizarre letter we received last month, telling us that one of the unanswered Freedom Of Information Act requests we’d been bugging the State Department about for the last five years would be “dismissed” if we didn’t respond immediately to say that we were “still interested” in the records we had requested. To make it harder to respond, there was no phone number or e-mail address in the letter.

“I want to apologize to you directly for that letter,” Mr. Stein said. “I’m sorry we sent you that letter. It was sent by somebody who had the authority to use my signature, but we should never have sent it to you. I’m still trying to find out why it was sent. Somebody is supposed to look at the file before they send out one of these letters. You laid it out very clearly in your letter, and you’re right: Nobody could have looked at that file, and everything you had done to follow up on your request, and thought that you weren’t interested in a response any more. I’ve just had an all-hands meeting of my department and told my staff not to send out any more ‘still interested’ letters until we can be sure that we are following the procedures we said we would follow.”

Aug 11 2016

Yes, we still want the State Department to answer our 5-year-old FOIA requests

In the latest episode of the FOIA follies, we recently received a bizarre letter letter from the U.S. State Department asking us whether we are “still interested” in receiving a response to one of several of our requests for State Department records that have each gone unanswered for more than five years.

The Department of Homeland Security is the leader in improper denial of FOIA requests and wrongful withholding and redaction of records, and has the largest backlog of unanswered requests. The State Department typically practices a different strategy of denial by delay, and has most of the oldest unanswered requests of any Federal department. A five-year wait for an answer from the State Department to a simple FOIA request is routine, although clearly illegal.

The latest letter we got from the State Department threatens to “close” one of our cases and take no further action on our request — in flagrant violation of the FOIA statute — unless we respond by fax (who still has a fax machine these days?) or snail-mail to confirm our continued interest in having the State Department fulfill its legal obligation to provide us with the records we’ve requested, including those about what happened to our complaints of human rights violations and the supplemental “long form” some passport applicants are asked to fill out, among other issues.

We’ve written back to the State Department (by snail-mail, since their letter included no phone number or email address) to tell them that yes, we really do want them to release the records we asked for five years ago — as they should know, since we already formally appealed their failure to answer our request within the time limit set by the law. (In response, they said they wouldn’t accept any administrative appeal until they answered our original request, making it impossible to challenge an illegal delay without filing a Federal lawsuit.) We’ve been making formal written requests at least annually since then for updates on the status of our requests and when the State Department estimates it will answer. (Each year, they set their estimated response dates back another year.) In the meantime, we made additional FOIA requests to the State Department on other subjects in 2014 and 2015. We have yet to actually get an answer from the State Department to any of our FOIA requests, regardless of how long ago we made them.

The Freedom Of Information Act does not require periodic expressions of continued interest in receiving late responses. But even though it isn’t required, we have provided repeated, explicit written expressions of continued interest in each of our requests. It would make no sense to allow a government agency to use the fact that it hasn’t responded to a request for government records within the legal deadline as an excuse never to respond at all.

In response to complaints from numerous advocates for government transparency, both the Department of Justice (OIP) and the FOIA ombudsman’s office (OGIS) of the National Archives and Records Administration have recently issued guidelines for the use of “still interested?” letters, if they are used at all. In May 2016, OGIS wrote to the State Department urge it to implement the OGIS recommendations regarding “still interested?” letters to FOIA requesters.

The State Department’s Chief FOIA Officer has claimed, both in her most recent annual report in March 2016 and in her response to OGIS in May 2016, that “we can assure you that DOJ guidance and OGIS recommendations are being thoroughly followed”. As we discuss in our reply to the State Department , which we have also sent to OGIS, the “still interested?” letter we received makes clear that this isn’t true.

“Freedom of information” means nothing if government agencies can, with impunity, ignore the law. A government agency’s own delay in complying with the law shouldn’t be an excuse never to comply at all.

Aug 10 2016

DEA recruits airline & travel industry staff to inform on travelers

Brad Heath reports in USA Today that the Drug Enforcement Administration (DEA) has been recruiting airline and other travel industry staff to inform on travelers. The DEA has been using these tips from industry insider informers with access to travel reservations as the basis for searches, seizures, and “civil forfeiture” proceedings to confiscate cash from travelers on the basis of allegations that it was somehow associated with illegal drugs:

USA TODAY identified 87 cases in recent years in which the Justice Department went to federal court to seize cash from travelers after agents said they had been tipped off to a suspicious itinerary. Those cases likely represent only a small fraction of the instances in which agents have stopped travelers or seized cash based on their travel patterns, because few such encounters ever make it to court.

Those cases nonetheless offer evidence of the program’s sweep. Filings show agents were able to profile passengers on Amtrak and nearly every major U.S. airline, often without the companies’ consent. “We won’t release that information without a subpoena,” American Airlines spokesman Ross Feinstein said.

In almost none of these cases has the DEA actually brought any criminal charges against the travelers whose cash has been confiscated:

A DEA group assigned to Los Angeles’ airports made more than 1,600 cash seizures over the past decade, totaling more than $52 million, according to records the Justice Department uses to track asset seizures. Only one of the Los Angeles seizure records included an indication that it was related to a criminal indictment…. Of the 87 cases USA TODAY identified in which the DEA seized cash after flagging a suspicious itinerary, only two resulted in the alleged courier being charged with a crime. One involved a woman who was already a target of a federal money-laundering investigation; another alleged courier was arrested a month later on an apparently unrelated drug charge.

According to USA Today, “The DEA would not comment on how it obtains records of Americans’ domestic travel, or on what scale.” USA Today wasn’t able to identify any of the travel industry informers who have been tipping off the DEA about customers they thought might be carrying cash. But DEA spokesman Russ Baer said DEA agents “receive information from employees at ‘airlines, bus terminals, car rental agencies, … or other businesses.'”

Because airlines and computerized reservation systems don’t keep any access logs, it’s impossible for anyone to tell, after the fact, which travel industry personnel looked at a reservation and might have been DEA informers (or any other sort of attacker or threat: identity thief, stalker, industrial spy, etc.).

Some of the examples reported in USA Today relate to DEA access to Amtrak reservations. In court filings quoted in the USA Today story, DEA agents described their review of reservations for domestic Amtrak travel within the US as “routine”. From one of Amtrak’s responses to our FOIA requests, we know that Amtrak has a special “police GUI” for police to use in mining and reviewing data from Amtrak’s “Arrow” reservation system. We’ve asked Amtrak for all records pertaining to access to reservations by law enforcement agencies. After more than a year and a half, Amtrak is still continuing to process responsive records, as discussed in our previous articles about Amtrak. But Amtrak hasn’t yet disclosed anything to us about DEA access to Arrow or other Amtrak data.

The story in USA Today notes that the DEA isn’t supposed to have access to the information about travelers on domestic flights that airlines are required to transmit to the TSA before they can get permission to issue boarding passes. The TSA has defended the Secure Flight passenger surveillance and control scheme as an administrative search for the limited purpose of aviation safety. But we’ve heard rumors that the TSA is under pressure from other law enforcement agencies to open up the Secure Flight database of domestic air travel itineraries for general law enforcement uses. Those uses would likely include both arrest warrants and lookouts derived from NCIC, and profiling for forfeiture targeting by the DEA.

Jul 06 2016

Watchlist Soup

Congress is again debating the proposals we wrote about last year to deny firearms licenses or permits to anyone “suspected of supporting” terrorism.

We stand by our earlier analysis and our condemnation of this proposal as (1) another step from sanctions against criminal conduct to pre-crime predictive policing, and (2) an expansion of the collateral consequences of secret, unconstitutional, extra-judicial, administrative blacklisting decisions.

But there seems to be a lot of confusion about what is really being proposed. This diagram shows what is already happening with the “No-Fly” and “No-Gun” lists, and what it would mean to merge them.

The proposed “No-Fly, No Buy” law currently under debate in Congress would add the TSDB as a third source (yellow arrow at center right of flow chart) of entries in “No-Gun” list in NCIC, in addition to Federal and state felony convictions and certain misdemeanor crimes of domestic violence. Everything else on this diagram except the one yellow line already exists and would remain the same.

Click the image above for a larger version, or click here for a full-page PDF of the flow chart with a key to all the acronyms.

Jul 05 2016

How travel restrictions turn refugees into criminals

It’s not a crime to flee from persecution, to try to get to a place of refuge, or to apply for asylum once you get there.

The case of a man who walked 30 miles from France to England through the tunnel under the Channel shows how wrong-headed restrictions on airlines, railroads, ferry operators, and other common carriers turn righteous refugees into common criminals in the eyes of the law.

Thousands of refugees seeking to get to the UK to apply for asylum have congregated in squatter camps and tent cities around the mouth of the Chunnel in Calais, France. Every night, hundreds of them try to get over, under, or through the barricades around the rail yard, and hide on freight trains bound for what they hope will be freedom and asylum on the other side of the Channel. Most of them are stopped at the barriers, and most of those few people who make it into the tunnel, whether on foot or hidden in or on trains, are crushed by high-speed trains, electrocuted on the live wires that power the electric trains, or suffocated in enclosed containers.

Abdul Rahman Haroun was one of the few lucky ones, perhaps the first, to make it alive, in August of last year, through the Chunnel to England — where he was arrested on arrival and charged under the UK “Malicious Damage Act” with criminal interference with trains.

When he arrived in the UK and was arrested, Mr. Haroun applied for asylum. UK authorities eventually determined that he had a well-founded fear of persecution in Sudan, from which country he had fled, and granted him asylum and the right to remain in the U.K.

But he was still prosecuted on criminal charges and spent four months behind bars for walking through the Chunnel to get to the UK.

Why didn’t Mr. Haroun take a train, plane, or ferry? Because that was prohibited by UK law — even for refugees who are legally entitled to asylum in the UK.

Even while it has been part of the European Union, the UK has never been a party to the Schengen Treaty, under which most border checkpoints and controls on movement within the Schengen Zone have been eliminated. UK immigration officers (like the US “pre-clearance” officers at airports in Canada) check the passports and visas of all Eurostar passengers in France or Belgium before they are allowed to board UK-bound trains.

As for travel by air or sea, airlines and ferry operators are subject to a fine of 2,000 pounds (about US$3,000) for each passenger they transport to the UK from any other country who is later found to be inadmissible or who lacks the documents “required” for admission, whatever that means. Carriers are fined millions of pounds a year for violating this law. These carrier sanctions create, as they are intended to do, a compelling financial incentive for carriers to err on the side of denial of transportation (for which there is, in practice, no judicial review and no sanction) in case of any doubt about admissibility to the UK.

It’s impossible to request asylum in the UK, or to obtain a definitive ruling as to whether such a request will be approved, until after one arrives in the UK. There is no document that would prove, before one arrives in the UK, that one will be granted asylum and allowed to maintain. There is no possible way to satisfy the demand of an immigration officer or airline check-in clerk for documents “proving” that one is entitled to asylum in the UK No such documents exist.

In other words, it’s illegal for a legitimate refugee qualified for asylum and right of permanent residency in the UK to board any type of common carrier that might provide transportation to the UK. Unless a refugee has their own boat to cross the Channel to the UK, or can get to the Irish Republic and then walk across the land border into Northern Ireland, the only legal way to get to the UK as a place of refuge from persecution is to swim across the English Channel or walk through the tunnel under the Channel.

It should be no surprise that some people in this situation choose to try to dodge the trains through the Chunnel as the best of a bad lot of choices. This is the choice forced on them by laws that deny them access to any mode of common carrier and leave them no legal route to asylum.

Should this be a crime, especially when they are found to be qualified for asylum and entitled to remain in the UK? Of course not.

If the UK doesn’t want people trying to walk through the Chunnel, the obvious solution is to stop denying asylum-seekers access to safe and legal transport by common carrier.

Lest we be accused of unfair criticism of the UK, we should make clear that the same is true of the US, which has a similar law (8 USC 1322) imposing a similar penalty of US$3,000 per passenger on any person or company that transports anyone whose asylum application is later denied.

As we pointed out last year to the UN Office of the High Commissioner for Human Rights:

Many eligible asylum seekers could afford to purchase airline tickets or tickets on other common carriers (ferries, trains, buses, etc.) to travel to countries where, on arrival, they would be eligible for asylum. They risk their lives… and some of them die, not for financial reasons, but because airlines or other government-licensed common carriers improperly refuse to sell them tickets or deny them boarding.

No documents are or can be required of refugees, who have often lost any papers, documents, or other possessions in the course of their flight from persecution. Carriers should be required to carry all fare-paying passengers, not sanctioned for fulfilling their duties as common carriers.