7 March 2023

The boats battle suggests the UK is only heading one way – out of the European Convention


If you want to know what Rishi is planning to discourage small boat arrivals hoping to game the system and present the UK with a fait accompli, you will get some, but not a great deal, of help from Suella Braverman’s announcement in the House of Commons this afternoon.

There have been four main issues with previous attempts to deal with the influx of Channel arrivals, which amounts to the size of a medium-sized town every year.

The first is that, ironically, the short stretch of sea round our coasts makes our borders more, not less, porous. You can keep people forcibly behind a fence on a land border, as Hungary does fairly effectively; but you can’t very well push arrivals back into the Channel or physically stop them landing.

The second is that once someone has arrived here, however irregularly, they may have a right to stay in order to seek asylum, even if they have since passed through a safe country such as France or Belgium.

The third is that any attempt at swift removal is currently held up by administrative law challenges in the courts, often (though by no means exclusively) based on human rights grounds; furthermore, where a court exceptionally hold that removal of a person is itself contrary to human rights (for example the right to family life), then despite their irregular arrival that person may gain a de facto right to stay.

The fourth and final problem is that while there are, in theory, plenty of powers to allow irregular migrants to be detained and deported, in practice few actually are: most are released, whereupon they disappear into the shadows and are never seen again.

The Government’s plan seeks to deal with each of these (except the first, which we can’t change).

There will be, for the first time, a duty to detain irregular arrivals and take steps to remove them. Those arriving irregularly from safe countries will be subject to deportation without appeal, and will not be able to claim asylum until they have left; further, if they do not get it they will never thereafter be allowed to return here. Moreover, the changes will be backdated to today.

These proposals, which one suspects more people agree with than are likely to admit it, reflect many of the suggestions in the Centre for Policy Studies ‘Stopping the Crossings’ report earlier this year, as well as from this paper from Policy Exchange, and are certainly a step in the right direction. The idea of prohibiting irregular arrivals from ever returning here is a good one, as is the notion that irregular arrival should not give you a right to stay here while the law’s wheels grind through your asylum claim: so also is the aim of making deportation swift, rather than agonisingly slow.

So far so good. Unfortunately, a number of difficulties lurk in the detail. The Government does not seem to have taken up Policy Exchange’s recommendations that under-18s should be expelled with their families, and there is also a worryingly wide exception for those too ill to fly or at serious risk if deported: stand by for large numbers of surprisingly mature 17-year-olds, a good deal of self-harm by migrants wishing to exercise a little moral blackmail, and a burgeoning jurisprudence of smaller difficulties morphing into ‘serious risk’.

There is also a lack of places for migrants to be sent, other than their countries of origin (where these are known, itself at times easier said than done). Further, where migrants are to be held, if all are to be locked up, is also another worry: we may not have the capacity for an influx this size. Equally, there is no mention, which there should be, of the automatic taking of fingerprints or DNA samples from irregular arrivals to aid future identification, though this may appear in the eventual bill.

What has raised most eyebrows to be raised, however, is the human rights implications. Braverman has already admitted that she cannot guarantee her bill will comply with either the Human Rights Act 1998 or the European Convention which lies behind it. It’s fair to assume her plan will encounter human rights challenges, both by being read down by the judiciary and also through appeals to what one suspects will be a largely unsympathetic Strasbourg. Unless steps are taken to stop it, we also face the prospect of a series of peremptory interim orders from Strasbourg such as the one that stopped the Rwanda flights in their tracks last year.

The Policy Exchange paper suggested meeting these challenges head-on, with a recommendation for a clause saying the legislation applied notwithstanding anything in the 1998 Act and an express neutralising of any attempted interim orders from Strasbourg (whose bindingness on the UK as a matter of treaty law is in any case a matter of some doubt). We will have to see whether the legislation ends up incorporating these points: if not, we are in for some juridical fireworks.

Even if this bill does not pass, however (and one can see not only Labour but the elderly liberal retirees and placemen in the House of Lords licking their chops), one thing is becoming increasingly clear. Just as more and more sensible people recognise (privately at least) that Net Zero 2050 is a dead duck, so too with the European Convention on Human Rights. The drip of cases like these is likely to cause an exit from that outdated Convention, with its uncontrolled judiciary and liberal bent, to become first sayable, and after that remarkably feasible. Here’s to hoping, at least.

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Andrew Tettenborn is a professor of law at Swansea Law School.

Columns are the author's own opinion and do not necessarily reflect the views of CapX.