A major piece of legislation unveiled this week seeks to achieve nothing less than the holy grail of current immigration policy: making asylum claims inadmissible from those who travel to the UK on small boats.
The illegal migration bill, to give its provisional title, would involve a duty placed on the home secretary to remove “as soon as reasonably practicable”, to Rwanda or a “safe third country”, anyone who arrives on a small boat. Those who arrive will also be prevented from ever claiming asylum in the UK.
Critics have been quick to point out how the plans are likely to be unworkable.
Yet while the home secretary, Suella Braverman, has denied that the government is breaking the law, experts say the proposals facenear-insurmountable legal obstacles.
Why is there such legal uncertainty about it?
The biggest red flag has come from Braverman’s inability, when unveiling the plans, to make a customary declaration they are compatible with the European convention on human rights, the post–second world war treaty developed so that governments could not abuse individuals’ rights.
As pointed out by the solicitor and legal commentator Joshua Rozenberg, this was a sign that the UK would fall foul of a future challenge in the European court of human rights (ECHR), which examines alleged violations of the convention.
Where would the legal challenges take place and on what basis?
The UK’s domestic courts would be the initial setting for any challenges to the new law, right up to the supreme court. Unlike in the US, British courts would be unable to overturn the bill but could make a declaration that it is incompatible with international obligations such as the convention.
It is at this point that a litigant or litigants, presumably asylum seekers, could go to the ECHR in Strasbourg, whose judgments are binding on the 46 Council of Europe member states that have ratified the convention.
Which international laws could the bill breach?
The European convention, for one. As noted by commentators such as the former government lawyer Jonathan Jones: “The government itself accepts the bill may well breach a whole toxic soup of ECHR rights (life, torture, slavery, fair trial, detention, family and private life, discrimination, right to a remedy).”
On top of this, the United Nations high commissioner for refugees (UNHCR) said on Wednesday that the bill is a “clear breach” of the refugee convention.
Such a move, the UN body said, “would undermine a longstanding, humanitarian tradition of which the British people are rightly proud”.
How does the government intend to get around these challenges?
In terms of the domestic challenges, the bill seeks to prevent the UK courts from finding that the legislation, or decisions taken under it, is incompatible with the ECHR. In fact, it aims to stop certain categories of cases from getting to court at all.
However, while the government has briefed that a clause in the new bill would apply a “rights brake”, there has been little detail as yet on how it intends to square its obligations under the convention.
What would happen were the ECHR to rule against the UK?
The government would have to either comply with the Strasbourg court’s rulings or defy them, putting itself in breach of its international law obligations under the ECHR. If the government chose to ignore the ruling, the result would be open conflict with the court in Strasbourg.
However, as the barrister and former parliamentary lawyer Alexander Horne points out, future claimants to the court who had been, for example, deported to Rwanda, could in theory come away not just with a declaration against the UK government but also compensation.
Horne compared the scenario to that which hung over the UK government in relation to a dispute with Strasbourg over the issue of prisoner voting. “Each of the people affected by a breach could bring a claim for compensation. Let’s say there’s 80,000 people and each one of them says that they want €10,000 [£8,912], you know, you’re quite quickly haemorrhaging money,” he added.
What is the potential endgame if the UK does not blink?
Once a member state is in breach of the convention, the case is monitored by the Council of Europe. Fines can result and, as was the case with Russia as a result of its invasion of Ukraine, eventual expulsion.
Indeed, the home secretary herself proposed that Britain should withdraw from the convention during her Tory leadership campaign, when she was attorney general. This idea has also been floated by the right-leaning thinktank Policy Exchange, which said the UK would be free from the jurisdiction of a court which it says “routinely subverts the terms of the convention”.
Such a withdrawal would not involve a breach of human rights, wrote Prof Richard Ekins, the head of Policy Exchange’s judicial power project. “On the contrary, it would revert to the legal arrangements by which the UK has long protected human rights – arrangements so effective that the convention was essentially a codification of the rights then protected in Britain,” he added.
As it happens, Ekins was the co-author of another Policy Exchange paper which last month envisaged sidestepping the Human Rights and Modern Slavery Acts to eliminate legal challenges to removing people who arrive in the UK on small boats.
Commentators such as Horne do not expect this to arise but warn that spin-offs include the fact that the UK would find itself in breach of the Good Friday agreement and the potential termination of the government’s agreement with the EU on security and justice cooperation.
“So essentially, you would end up with no cooperation with the EU over matters that are quite important, such as extradition and criminal records,” he said. “Ultimately, it’s not just as simple as the UK saying it will just quit the European convention on human rights. There are these additional problems that would be created, not only with the Council of Europe, but also the European Union, the Republic of Ireland and possibly even with the US.”
