UK faces legal battle over plans to stop cross-Channel migrants

The UK government has set the stage for fresh legal battles over its plans to stem the arrival of undocumented migrants across the Channel, after it conceded on Tuesday that new legislation may breach human rights laws.

Introducing the illegal migration bill to parliament, home secretary Suella Braverman defended the government’s strategy on stopping small boat crossings, which Rishi Sunak in January named one of his five “people’s priorities”.

She said she was “confident” the bill was “compatible with the UK’s international obligations”. But she added the “robust and novel” approach taken meant “we cannot make a definitive statement of compatibility under section 19 1b of the human rights act”.

In a letter to Tory MPs, Braverman also conceded that there was a “more than 50 per cent chance” that the provisions of the legislation would be incompatible with the European Convention on Human Rights.

The legislation bars anyone considered to have entered the UK illegally from ever claiming asylum and permanently bans them from returning officially. It also makes it a “legal duty” for the home secretary to remove such people either to their home nation or to a “safe” third country.

In another provision it strengthens detention powers, so that people held in these circumstances can apply for bail from the courts only after 28 days.

In 2022, a record 45,000 people came to Britain on small boats across the Channel, and with the government spending more than £6mn a day to accommodate asylum seekers in hotels, Sunak has been under pressure from his own party to devise solutions.

At a press conference, Sunak said he was “up for the fight” if the legislation was challenged in the courts. “We’re confident we will win,” he added. “We believe we’re acting in compliance with our international legal obligations.”

He also insisted there was no need to create significant new detention facilities, on the grounds that people would be removed quickly. “The idea is not to have to detain people for long periods of time,” he said.

Immigration lawyers and NGOs have warned the government’s strategy amounts to a de facto withdrawal from the 1951 UN convention on refugees, introduced after many countries turned away Jewish refugees during the second world war.

The UN refugee agency on Tuesday said the legislation would in effect deny protection to many asylum seekers and prevent them from putting their case.

“This would be a clear breach of the refugee convention and would undermine a longstanding, humanitarian tradition of which the British people are rightly proud,” said the UNHCR.

The bill has been criticised by opposition MPs, charities and migration experts as “unworkable”, in part because the UK has no viable agreements in place for the return of refugees to “safe” third countries.

Plans to deport some asylum seekers to Rwanda have been stalled by continuing legal challenges, including at the ECHR, which last year blocked the first flight to Kigali carrying detainees from taking off.

In the absence of other agreements, this means that tens of thousands of new arrivals could in practice end up in detention.

Dame Diana Johnson, Labour chair of the House of Commons home affairs select committee, said: “They don’t have the detention places — 3,000 have come already this year on small boats and those numbers are going to grow. Where are they going to go? And the cost of detaining people is going to be huge.”

She predicted the new policies would be mired in the courts, preventing the government from carrying out its plans before the next election.

Some Tory MPs want the UK to withdraw from the ECHR altogether if its Strasbourg court continues to prevent the UK from carrying out deportations — a sentiment echoed by Professor Richard Ekins, head of the Judicial Power Project at the rightwing think-tank Policy Exchange.

“The key unanswered question is whether the bill goes far enough in disarming legal challenges to removals, and in particular what is to happen if the ECHR intervenes as it did last June,” he said. “If the policy is to be effective . . . the new bill should require removals to continue even if the Strasbourg court purports to rule otherwise.”

Braverman said the government would open up more safe and legal routes for asylum seekers to reach the UK once the small boats crisis had been tackled.

There was no immediate sign of a backlash from centrist Conservative MPs, who have warned previously of a potentially “significant rebellion”, should the government jeopardise UK membership of the ECHR.

One former cabinet minister from the party’s moderate wing confirmed that Sunak had had breakfast with a number of such MPs on Tuesday and had allayed his concerns. 

Additional reporting by George Parker in London

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