I know I keep saying this, but it bears repeating - it is not illegal to cross the Channel in a rubber dinghy. If it were, the 25,000 asylum seekers who have so far made the trip this year would all be under arrest.
It’s not because prisons are full that they are being put up in hotels. It’s because they are not criminals.
It’s also why the Home Office officially calls them irregular migrants, not illegal ones. It’s only politicians who use the more pejorative term.
Why then, you may ask, do we need passports if we can just swan into the country without any documentation whenever we please?
That is illegal under Section 24 of the Immigration Act 1971, and carries a punishment of four years' jail.
The one exception to that is claiming asylum as soon as you get here, a right enshrined in the 1951 Refugee Convention to which the UK is a signatory.
You may well argue that this 74-year-old treaty is now out hat, and you may well be right. It was designed for refugees yomping across Europe in search of a home after World War II, and circumstances have changed considerably.
But until the international community can get together to draw up a new convention, international law incorporated into British law is what we’re stuck with.
People smugglers rub their hands at the white elephant causing Britain's migrant backlog - Nigel Nelson
|Getty Images
It is only when asylum is refused that those claiming it become illegal migrants, and as failed asylum seekers, they could still end up in the clink for coming here without documents, though that rarely happens.
What the Tory Illegal Migration Act did was make cross-Channel migrants inadmissible when they got here, but that was only ever going to work if they could also be shipped off to Rwanda.
As that white elephant never got off the ground, it just made the situation worse - inadmissible migrants couldn’t stay in Britain but couldn’t leave either if there was no safe country to which they could be sent. And the backlog grew.
International and maritime law forbids “pushback”, so there is no way we can simply shovel them back to France without French agreement.
This is where everyone shouts Australia. But Australia never received the approval of Indonesia for the turn back, and a take back deal with Malaysia, similar to one Britain now has with France, ran into legal obstaclesUnder that agreement, Australia would have been allowed to send back 800 asylum seekers in return for 4,000 refugees from Malaysia, but it foundered in Australia’s High Court, which ruled it unlawful.
So, using Australia as a role model for the way things could be done is not borne out by the facts. The question now is whether our one-in, one-out deal with France will have more success.
It was feared the European Commission might be a stumbling block here, but it has now approved it, so we’re already one up on the Australians.
Clearly, such an arrangement will make no difference to the numbers. But it might stop some from using the despicable services of people smugglers.
Anyone making a small boat crossing will become inadmissible for these safe routes, and around 50 a week will be detained and returned to France if human rights challenges in the courts don't get in the way.
The Tories call this 17 in one out because the numbers are small, but that’s just an opposition whine. If it puts even a small dent in the business model of organised crime, it’s worth a try.
But there is something else about this scheme which has not been appreciated. Under the present rules, asylum claims can only be made once the claimant is on British soil or at a British border.
That’s why so many people gravitate to Calais - to find a gangster to take them across the Channel for a price.
The only exceptions to this are limited resettlement schemes for Ukrainians, Afghans and Hong Kongers. There are no official routes to the UK for anyone else.
Enabling the paperwork and security checks to be done in France marks a significant change, for the first time effectively opening up a new way to legally lodge a claim for asylum from abroad.
That will not appease those who say no migrant should ever be allowed to come here. But back in the real world, this might eventually turn out to be a game-changer.