Rishi can stop illegal immigration – if he keeps the European court quiet

Nick Timothy

The debate about the Channel crossings is as dishonest as with immigration as a whole. The Left has no interest in stopping the waves of migrants who reach our shores, while on the Right some pretend the problem is caused only by a lack of political will. Ministers have no room for the luxury of political postures that will never be tested. Almost 46,000 migrants crossed the Channel last year: a number that without change will be exceeded this year. With the asylum system overloaded and anger building about migrant accommodation, the changes the Home Secretary makes must turn things round fast.
The new immigration bill, due this week, is not, as some say, a repeat of last year’s Nationality and Borders Act. That made important changes, such as the distinction in law between asylum seekers who come here illegally and those who do not. The new legislation seeks to go as far as ministers can – consistent with their obligations in international law – to remove the rights-based appeals that allow migrants to thwart their deportation. To appreciate why this is so important, consider the difficulties in stopping the Channel crossings and removing migrants – failed asylum seekers, foreign criminals and illegal immigrants – from the country.
First, our law enforcement agencies can investigate, disrupt and prosecute the criminal gangs that bring people here, but this cannot alone solve the problem. While migrants can make it through the “forward border” in places like Libya and into Europe, with its borderless Schengen zone, there will be a demand among many to come to Britain. While France could help to close down the routes – by taking migrants back and policing its borders better – it shows limited interest in doing so. Second, we cannot simply “turn back the boats” or the people on them. Australia has successfully turned back migrants at sea by putting them in lifeboats to return to Indonesia without the fuel to reach Australia. This is not feasible in the 21 mile-wide English Channel. Nor can we return migrants to France or to any other country without agreements to do so legally.
Third, migrants and the gangs who bring them here know that once an individual is in Britain it is next to impossible to remove them. Our asylum grant rates are higher than in Europe. Our human rights laws grant copious avenues of appeal. Our modern slavery legislation allows migrants to claim they have been trafficked to evade removal. Migrants are prepped to destroy their identity documents, lie about their age and nationality and make claims about their religion or sexuality. They know how to play the system. It is important to assess the dishonesties put forward by government critics. Some claim the Channel crossings are the result of Brexit. They say that in the EU, Britain had a returns agreement to send all migrants back to claim asylum in the first European country they had reached. But in the last year we were able to use the Dublin Regulation, as this rule is called, only 105 out of more than 8,500 requests by Britain were granted – just 1.2 per cent of the total. Others claim the reason for the Channel crossings is that Britain does not have “safe and legal routes” for people to come here. This is obviously untrue: in the last year 89,000 Ukrainians, 28,000 Hong Kongers and up to 21,000 Afghans arrived. What these campaigners mean is they want even more such routes for more nationalities, including those already in safe countries like France. But even if we did this – and sacrificed any semblance of control in the process – it would not stop the crossings, unless these routes were completely unlimited in scope.
The only workable solution, then, is to do what the Government is attempting to do. Along with efforts to disrupt the criminal gangs and make our asylum system more effective, we must break the link between making the journey and getting to stay in Britain afterwards. In other words: migrants should be detained upon arrival and swiftly deported to their own country or to a safe third country like Rwanda – a country with which we have a migration partnership.
There are logistical challenges, such as the capacity of the detention estate, but they are surmountable. The real difficulty is the maze of modern slavery claims and human rights appeals that migrants use to avoid deportation, and when deportation is not imminent, detention too. That is what the new legislation needs to fix. Ministers know there is no prospect in this Parliament of leaving the European Convention of Human Rights and with it the Strasbourg court that does much to render immigration law unenforceable. So their plan is to do everything they can – pushing international law obligations to the limits – to remove the migrants who come here illegally. It seems likely almost all claims will be made “non-suspensive”, so unless migrants can show they will face a real risk of serious and irreversible harm their claim will be heard in Rwanda, and not used to hold up deportation. It is also likely that claims must be made in one go and straight away to prevent cases dragging on for many months. If measures such as these work, rapid deportation will allow ministers to bar those who enter the country illegally from claiming asylum at all – and cap the number of people claiming asylum here.
This is potent stuff, and if it works it will mean that many more migrants are deported quickly. But the policy faces two tests. First, can migrants be removed in sufficient numbers that we reach a tipping point, when the migrants realise that there is no longer any point in attempting to cross the Channel? And second, can this new approach survive litigation and prove compatible with the European Convention? Ministers have worked hard to design a scheme that is robust enough and able to withstand legal challenge. We must hope they have squared that circle, but if the Convention foils them, Britain will be able to avoid the question no longer. Then, the case for withdrawal from the court will become unanswerable.