90. Illegal by name and illegal by nature

Peter Burke
Oxford For Europe

30 April 2023

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Do we believe Sunak when he says he is turning over a new leaf on a compulsively law-breaking regime? He is making it difficult for us.

“Myself and the prime minister have been working tirelessly to ensure we have a bill that works – we’ve pushed the boundaries of international law to solve this crisis.”

Suella Braverman

The Government has become reduced to repeating the old lines – and hope that the public did not remember them repeated constantly less than a year ago. We find the same ministers claiming the very system that they said had been fixed by their hands remains broken – as if nothing has happened – and so it requires yet more, and as of yet unpublished and unseen, primary legislation to be published in the next few weeks like a second act in a repetitive drama.

Prof Thom Brooks

Migrants are often people fleeing impossible conditions. Civilians driven out of Buulomareer town by Al Shabab, AMISOM Photo / Tobin Jones. Original public domain image from Flickr

This week the new Illegal Migration Bill completed its passage through the Commons. It will now go up to the Lords, to join several other equally nefarious pieces of proposed legislation including the Retained EU Law Bill and the  Strikes (Minimum Service Levels) Bill, of which I have complained elsewhere. It will undoubtedly face stiff opposition there, and there will be arguments over whether it represents a manifesto commitment (in which case by convention the Lords agree to give it an easy ride) or not. On this point, perhaps the Lords need to be reminded that the Tory manifesto in 2019 promised that ‘We will overhaul the current immigration system, and make it more fair and compassionate’. And that without a trace of irony.

Since its launch last month the bill has been the subject of very intense debate, not only because of what it says, but also because of the intemperate language used by those proposing it, in particular Home Secretary Suella Braverman and Migration Minister Robert Jenrick. I need hardly tell you that both Jenrick and Braverman have form in terms of questionable and perhaps dishonest behaviour, and many are wondering why they are in government at all. Indeed their presence and their actions make it difficult to see Sunak’s promise to introduce ‘integrity, professionalism and accountability’ into Tory politics as anything other than empty rhetoric.

In any normal environment Braverman’s claim that the number of people queuing up to get into the UK runs into billions would have been laughed out of court. But in today’s Tory party who cares about a misplaced decimal point? What harm if you are out by a factor of 1000 or more, if it achieves the desired dramatic effect? And what about Jenrick’s use of the word  ‘cannabilise’ in the context of migration from hot countries? Are we to believe that this was just accidental, a Freudian slip perhaps, or was it a deliberate attempt to send out a coded message to those of his supporters who have a thirst for racist rhetoric?

Eats shoots and leaves

I cannot resist the temptation to ask who chose the name of the bill. It really is an ‘eats shoots and leaves’ moment. Some years ago Lynn Truss (not of course to be confused with Liz Truss – perish the thought!) In her book ‘eats shoots and leaves‘ pointed out some of the absurdities of the English language, and the phenomenal scope for ambiguity and misunderstanding. So too, of course, with this particular bill. The title left everyone wondering whether the title refers to a bill dealing with illegal migration or an illegal bill dealing with migration. The legal consensus is that the latter is true. Migration is only illegal if the government declares it so.

And such a declaration is itself illegal if it is in breach of the UN Refugee Conventions of 1951, of which ironically the UK was a founder signatory, or the European Convention on Human Rights – again something for which the UK was to a great extent responsible, in days of more enlightened leadership. The UNHCR has been very clear in its view that the proposed bill is not only inhumane but also illegal.

“The Bill all but extinguishes the right to claim asylum in the UK…breaches the UK’s obligations towards stateless people under international law…would lead to violations of the principle of non-refoulement…would deny refugees and stateless people access to their rights under international law.”


This view is shared almost universally outside the Tory party, and indeed even within it, as we have heard time and again in debate. The Home Secretary herself virtually admitted on the first page of the bill that she could not vouch for its compliance with the European Convention on human rights, something which has been admitted only very rarely in the past. Even the completely insane Retained EU Law Bill has been declared by ministers to be compliant, although of course one could argue on that point.

This speaks for itself

So, there is a gross lack of coherence in the title of the bill. We do not know whether this was down to sheer incompetence or whether it was deliberate. Was there, as has been suggested, some wily mole in the civil service who was trying hard to make ministers look stupid or malicious? And is that person still in post, at a time where civil servants are expected to show uncritical loyalty to the government line, however crazy?

As any event, the title of the bill is a model of coherence and exactitude compared with its contents. It is perhaps worth thinking for a moment about the foreseeable consequences of this legislation on large numbers of vulnerable people if it becomes law, and therefore the reasons why it has caused such anger and upset at home and abroad.

An asylum ban?

The bill essentially sets out to redefine the concept of refugee status. It states that any person entering the UK via irregular routes, for example on small boats, is doing so illegally and is committing an imprisonable offence, while also relinquishing forever the right to be granted asylum in the UK. It applies across the board, and it does not matter, for example, whether that person was an Afghan interpreter employed by the British but unlucky enough to have missed the flights out of Kabul. Or indeed an unfortunate fleeing the violence in Sudan. The bill proposes that such a person would be incarcerated for 28 days and that then the Home Secretary would have the right, or more precisely the obligation, to deport them as soon as practicable. In the case of children they would remain in the UK until their 18th birthday, after which they too would be deported. The safeguards relating to modern slavery, themselves introduced by the Tories under Theresa May, would specifically not apply to this group of people. And in the final stages of its accelerated passage through the Commons, the bill was made even more toxic by restricting the power of the courts to interfere – a sop to the party extremists.

Bear in mind that the vast majority of people arriving in the UK and claiming asylum eventually have their application granted, albeit with phenomenal delays. What this tells us is that the often trotted out Tory assertion about their claims are bogus is not based on evidence. We’re talking in many cases about people fleeing persecution from tyrannical regimes, and in many about those who strive to be reunited with family members in the UK. As for children, imagine somebody who has spent his or her entire life – separated from family – living in the UK, being educated here, and then being deported at the age of 18 to a country they do not know, and very likely even to a country with which they have no connection? The inhumanity of these proposals hardly even needs to be stated.

“This is an asylum ban – extinguishing the right to seek refugee protection in the United Kingdom for those who arrive irregularly, no matter how genuine and compelling their claim may be, and with no consideration of their individual circumstances. People fleeing war and persecution are simply unable to access the required passports and visas. There are no safe and “legal” routes available to them to come to the UK. No one would choose to pay smugglers for a dangerous channel crossing if they could board the Eurostar. Denying access to asylum on this basis undermines the very purpose for which the Refugee Convention was established.” 

Prof Ruvi Ziegler, Migration Lawyer and Oxford for Europe member

And the government’s claim that the UN provides safe and legal routes to the UK has been stated by the UNHCR itself to be bogus.

Not just wrong but ineffective

But on top of that, will it work? The object of the exercise is to “stop the boats” by providing a deterrent to people coming here. is there the slightest evidence that it will do so? Ministers know, and presumably so do the potential migrants and people traffickers, that the practicalities are overwhelming. If every individual coming into UK via irregular routes, currently some 60,000 per annum, is going to spend 28 days in detention, the government will inevitably have to find almost 5000 more places, at the time when prison overcrowding is at crisis point (current E&W official capacity 79,000, with 107% occupancy).

And where to send them? This Government constantly talks about the evils of ‘illegal migration’ as if it were unaware that the scale of the issue is almost entirely of its own making. The insanity of Brexit was compounded by the insanity of not retaining a returns agreement with the EU under the Dublin III regulations – something which it could have had even after Brexit. It boasts that it has returns agreements with India, Albania and Syria. Yet it has none with its nearest neighbours, nor with the countries of origin of most asylum seekers. Talk of the ‘first safe country’ is nonsense – it is not mentioned in the UN Refugee Convention, but in the Dublin III regulation, from which the UK has walked away.  Rwanda – whatever the Home Secretary says – is not a viable alternative. Even if she manages to scale up the original agreement – which was to send 200 people at a cost of almost £500,000 each to the UK taxpayer – by a factor of 100, that is still only about a third of the annual number of boat people. But, see above, misplaced decimal points do not bother her.

Braverman tells us that ‘Rwanda is a progressive, rapidly growing economy at the forefront of innovation – I have thoroughly enjoyed seeing first-hand the rich opportunities this country can provide to relocated people through our partnership’. This at the same time as telling us that being sent there is an effective deterrent. You can’t have it both ways.

As it happens Rwanda – if we are to believe Amnesty International – has a questionable human rights record. Indeed, the Rwandans who will be deported to the UK (had you not been told about that part of the deal? Quelle surprise!) will perhaps be glad to get away.

On the deterrent effect, are we really to believe that people who are prepared to risk their lives in rubber dinghies in the world’s busiest shipping lane will be deterred by a remote prospect of being sent to Rwanda?

And return agreements with France? Forget it. Most continental European countries are coping with far more migrants than the UK. Not that the Daily Express will tell you that.

Even Tories are unhappy

So, such a bill is bound to have the ‘liberal elite’ choking on their cornflakes. But listen to prominent Tories who are certainly not known for their dedication to the rights of immigrants:

Former PM Theresa May, author of the term ‘hostile environment: “The Modern Slavery Act gave hope to victims, but this Bill removes that hope. I genuinely believe that if enacted as it is currently proposed, it will leave more people—more men, women and children—in slavery in the UK.”

Former Tory Attorney General Sir Geoffrey Cox: “Why, then, does it need legislation if what is not in fact being asked is that this House should approve, quite consciously and deliberately, a deliberate breach of our obligations under the convention?”.

And others not known for their rabid liberalism, such as Iain Duncan Smith, are equally unhappy.

Sir Geoffrey Cox KC

Let us assume that ministers know that the bill is pointless and unethical. Why are they pushing it through with such indecent haste, not even giving their own MPs time to get their heads around it? Can it be that they need a boost in advance of local elections on Thursday? Or can it be that they want to force a row with the European Court of human rights? This would give a pretext for joining Belarus and Russia as the only European countries outside the European Convention on Human Rights, and therefore the Council of Europe. Government would then have the ability to bring forwards its own Human Rights Bill with no inconvenient limits. Ultimately the Illegal Migation Bill is really a covert assault on your rights and mine.

Brexit Mark II

If we leave the ECHR and Council of Europe this will further alienate our former EU partners and threaten peace in Northern Ireland, as the Good Friday agreement is predicated on the ECHR. It will undo such limited progress in relations as has been made since Sunak became PM, and it will put yet another barrier in the way of rejoining. That of course, may well be the object from the perspective of the Brexit Ultras. On top of all that it will set a precedent to autocrats around the world who want similar ‘freedoms’, and it will remove the UK’s ability to claim the moral high ground.

This is Brexit Mark II, the next step on the UK’s progress towards the status of a pariah on the scale of North Korea. Also a dream of the little-missed former Justice Secretary Dominic Raab and his acolytes. Can they be so Machiavellian? Does Sunak not see this as the exact opposite of what he promised when he took office?

You tell me.

The views expressed here are the author’s own and not necessarily representative of Oxford for Europe

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