Rishi Sunak will on Tuesday put himself on collision course with human rights campaigners with new migration legislation that he claims will “take back control of our borders, once and for all”.
The illegal migration bill will include a “duty” on the home secretary to remove nearly all migrants who arrive in Britain without permission, overriding their right to claim asylum.
Home secretary Suella Braverman told the Daily Express the bill would push “the boundaries of international law” and the measure would likely to be tested in the courts.
Some Tory MPs have said they would oppose any measure that clashed with Britain’s obligations under international law, including the European Convention of Human Rights.
Under the new law, only the under-18s and the sick arriving in small boats would be allowed to apply for asylum.
Government officials said the bill would include a “Section 19 (1) (b) statement” under the 1998 Human Rights Act, acknowledging there was a risk that the measure could be incompatible with the ECHR.
The use of such a statement does not imply that ministers believe the bill will actually breach the ECHR, but they cannot say with absolute confidence that it will not. The issue could be legally challenged.
The prime minister told The Sun newspaper that the new laws would end cross-Channel people trafficking “once and for all”. But critics have pointed out that it is unclear where those the government hopes to stop will be taken if they arrive in Britain while its key policy to deport asylum seekers to Rwanda is stalled in the courts.
“We can’t remove anyone to Rwanda right now — it’s subject to legal challenge. We can’t remove anyone back into Europe because there are no returns agreements,” Lucy Moreton from the Immigration Services Union told the BBC on Monday. “Unless we have a safe country that isn’t Rwanda to remove people to this just doesn’t seem to be possible.”
Sunak’s promise to “stop the boats” was one of the five pre-election pledges he announced in January after a record 45,728 undocumented migrants crossed the Channel last year.
The prime minister is hoping last week’s deal with the EU on the post-Brexit trading regime in Northern Ireland will help foster a better climate for cross-Channel co-operation with both France and the EU over illegal migrant crossings.
Sunak travels on Friday to Paris for talks with French president Emmanuel Macron. British officials said they would focus on the enforcement of migration rules and making existing agreements with France work better.
A big challenge facing the UK government is what to do with those who successfully cross the Channel.
Rights groups have raised the prospect of thousands of asylum seekers being detained indefinitely as a result of the new legislation in the absence of agreements with other countries for relocation.
“The government’s flawed legislation will not stop the boats but result in tens of thousands locked up in detention at huge cost,” said Enver Solomon, chief executive of the Refugee Council charity.
Labour’s shadow home affairs secretary, Yvette Cooper, questioned whether Sunak’s new rules added much to last year’s Nationality and Borders Act, which enabled the criminal prosecution of people entering the UK illegally to claim asylum.
“At the moment a lot of this looks like a rerun of things they had in last year’s law . . . which ended up making things worse,” she said.
Tory MPs, who have been encouraged by Sunak’s focus on illegal migration, also want clarity on how the plans will overcome legal challenges and work in practice.
“On the surface this seems like a sensible approach if the legislation does what they say it will do, but Number 10 will need to make sure that they are not overselling this,” said one senior Tory MP.
Colin Yeo, an immigration barrister and author of the Free Movement blog, said that by barring undocumented people arriving in the UK from claiming asylum, Britain would de facto be withdrawing from the 1951 Refugee Convention.
He anticipated the UK could face legal problems over the prolonged detention of migrants, including at the ECHR in Strasbourg, if there were no prospect of their swift removal to third countries.
The Home Office said: “We will shortly introduce legislation which will ensure that people arriving in the UK illegally are detained and promptly returned to their home country or a safe third country.
“Our work with France is also vital to tackling the unacceptable rise in dangerous Channel crossings. We share a determination to tackle this issue together, head-on, to stop the boats.”
