It is seven years since the British public voted by a slim majority to leave the European Union. The idea was to ‘take back control’ by retrieving powers of sovereignty that had been given to Brussels. But there was another part of the equation that was less talked about: the power over law that had been given to the European Court of Human Rights in Strasbourg. When the Rwanda scheme was thwarted last year, some argued it was time to pull out of the ECHR.
It’s hard to blame Strasbourg now that the Supreme Court of the United Kingdom has just thwarted the Rwanda plan. The court’s verdict is a humiliation for Rishi Sunak, who promised to ‘stop the boats’ and to succeed where Boris Johnson had failed. Instead, he has ended up stuck in a legal quagmire that was created in London, not Europe. It is now clear that both Sunak and Boris Johnson made promises that they were legally unable to keep. Both gambled. Both lost.
Laws that were written for the asylum situation of the 1950s need to be updated for the 2020s
The policy, which was drawn up under Johnson and taken up by Sunak, has been caught up in a mess of conflicting laws, a mess still not cleared up after 13 years of Conservative home secretaries and justice secretaries. The Rwanda scheme was the main policy for ‘stopping’ boat arrivals. The Supreme Court judges don’t rule out deportation altogether: they just say that Rwanda isn’t safe, because there’s a risk of the authorities in Kigali re-deporting asylum seekers to the country they originally fled from. They cite not only the European Convention on Human Rights but also the 1951 UN Convention on refugees and other treaties and conventions.
It’s hard not to sympathise with those who have risked their lives to come to Britain and start again at the very bottom, often at the mercy of human traffickers who demand labour (in agricultural or domestic service, nail bars or sweatshops) in exchange for their passage. This is modern slavery, one of the great evils of our time. Illegal immigrants are more vulnerable to this form of exploitation because they tend to be fearful of making contact with police, since they think it may result in their deportation.
This criminal business model is made possible by the dysfunctional UK system. There is in fact no realistic means to deport those who make the crossing, and prime ministers are – as we now see – un-able to overcome legal obstacles to reform. The asylum claims process can take years, a timeline that has lengthened exponentially under Tory governments, again due to the inability to simplify legislation. Those who apply for asylum are banned from working and put up at taxpayers’ expense – at a cost of some £7 million a day.
About a million people now live as undocumented migrants without basic legal protections. Is it harsh to deport a young family who have risked their life savings and used every means at their disposal to come to Britain and contribute to its society? Of course it is. But it is worse to leave the problem unaddressed and just let the people traffickers and gangmasters carry on their nefarious business. To do nothing means to permit a system that is sucking in tens of thousands of people, hundreds of whom die during the journey.
This is a complicated moral question, a choice between greater and lesser evils. Sunak could have made a point by offering to take in two bona fide asylum seekers for every one who was deported. But he has been heavy on the rhetoric and light on the legality. Was the Supreme Court’s ruling such a surprise? It would be interesting to see the unredacted legal advice the PM received on the policy. He ought to have cleared the legal obstacles before pledging to ‘stop the boats’.
There is no point in waging a pretend war on Strasbourg. Any attempt to turn this into ‘Brexit II’ has just been thwarted by this country’s Supreme Court. This is a clash between proposed legislation that backs the Rwanda policy and other laws that observe the 1951 UN Convention. Had this mess been untangled at any point in the last 13 years, the Prime Minister would now not be facing such an embarrassing outcome.
What can be done? The Supreme Court has ruled that the ‘non-refoulement’ protection is an established principle in ‘customary international law’, which the court found binding ‘regardless of whether [states] are party to any treaties which give it effect’. In other words, the law as it stands is immovable. The only hope for the deportation policy, now, is to find a different third-party country.
Last week, Germany said it was also considering the idea of processing claimants in third countries. There have been similar noises from Denmark and France, while Italy has signed its own deal with Albania. Across Europe, leaders are steadily converging on deportation schemes as the only tool that will work against people trafficking. But laws that were written for the asylum situation of the 1950s need to be updated for the 2020s. Until they are, nothing can really change.
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