Several years ago, someone quipped about “legislative incontinence “ in UK law designed to bolster border control and enforcement. There has been plenty more since - “groundhog day” - says shadow Home Secretary Yvette Cooper of the latest Bill which has reached the report stage. The Brexit promise to “take back control of our borders” by decoupling the UK from its EU obligations and ending free movement in the withdrawal deal was widely credited with boosting the scale of Boris Johnson’s General Election victory in 2019.
In practice, legal challenges to the controversial Rwanda policy– the forced settlement of refugees in a “safe” third country paid to take them – soon eroded confidence in Government performance. EU membership over, ministers and those around them seemed to relish putting lawyers and civil servants in the frame for past failures. They were happy to be “pushing the boundaries of International law” with the new Bill. The Prime Minister declared he is “up for the fight”.
- Push the boundaries, it certainly does. Arguably, the Bill introduces measures that:
End Human Rights Convention protection for those arriving at UK borders
- Breach the Refugee Convention by not considering asylum claims from those who do not arrive through “safe and legal routes”, irrespective of whether that was an option in the first place
- End the long-enshrined jurisdiction of the Courts to review decisions and detention in many circumstances
- Block the path to future British nationality claims
- Extend the Home Secretary’s ability to make law by statutory instrument rather than primary parliamentary legislation, thereby breaching a long-established principle of UK constitutional law
Law Society President Lubna Shah said: ‘there is a high chance this bill may not comply with international and domestic law. It could lead to the British state violating fundamental rights, such as the right to life, to be protected from torture, trafficking and slavery, to liberty, to fair trial’.
Privately, even some ministers worry how the UK can continue its pledged membership of the European Convention on Human Rights (not contingent in any way on EU membership), which will be next heard at the Court of Appeal in April.
Ministers have accepted some early amendments in relation to child migrants but are pushing through the substance of the Bill in the hope of it becoming law this summer, and then implemented - at which point the much-relished legal challenges will begin.
Perhaps the most interesting early comment is from the BBC’s political editor Chris Mason:
“Some figures even wonder if the whole thing has been set up in order to fail, something vehemently denied by ministers”.
UK Immigration: a polarised debate
Home Secretary Suella Braverman had to apologise to civil servants for an email, apparently from her office, stating "We tried to stop the small boat crossings without changing our laws. But an activist blob of left-wing lawyers, civil servants and the Labour Party blocked us”. A lawyer herself, she denied authorship of this justification for the Bill. According to civil service union leader Mark Serwotka, "The Home Secretary's disgraceful and disrespectful comments come as no surprise to us. Her government has, for years, treated hard-working civil servants with disdain and contempt, taking them for granted." Bar Council Chair Nick Vineall KC said her remarks about lawyers “show a lack of understanding and ignorance about their role in society.”
The PM deflected an opposition question at PMQs about how many ineligible asylum candidates had been returned last year, saying of Keir Starmer: “he voted against measures to deport foreign criminals, and he even argued against deportation flights…. he talked about his legal background: he’s just another lefty lawyer standing in our way”. Earlier, Starmer had said that serious attempts to tackle illegal crossings should focus resource on “smashing” the trafficking gangs. Investment in intelligence and enforcement activity has actually been cut in recent years. He accused the PM: "On his watch, processing of those boat cases has gone from unacceptable to almost non-existent." He described a “broken” asylum system and a “deluded” belief that yet more legislation would reduce illegal crossings in the absence of returns agreements with the countries from which they had set off.
Then came Gary Lineker’s tweets comparing the new policy with Nazism. This “disappointed” the Home Secretary ; a “frank conversation” with BBC bosses, in which Lineker was “spoken to” about his duty to uphold the BBC code on impartiality, was followed by suspension and reinstatement as the BBC promised to review its guidelines, presumably in a more liberal direction.
Meanwhile, the PM is buoyed by the outcome of his meeting with President Macron, and the triumph of agreeing to part with almost £480m of UK money over three years for France to help prevent illegal channel crossings. There is no actual agreement on returns, though.
Veterans of the debate lined up to dismiss the Illegal Migration Bill as unworkable and worse. Totally impractical”, and a “Donald Trump playbook measure”, according to former Home Secretary Lord Blunkett, who went on to admit: “it's a damned good piece of politics if you've been in difficulty with the electorate." He should know, as an architect of the Points Based System which a decade and a half later is still failing to deliver but kept the lid on frustrations ahead of the 2005 election.
Refugee Action said it would “cause misery, cost millions to the taxpayer and drive desperate people to take ever more dangerous journeys”. “Cruelty without purpose”, said the Archbishop of York.
Practically and legally, the Bill looks unlikely to work. But it makes perfect political sense.