Priti Patel’s reforms to the rights of asylum seekers have predictably scandalised the House of Lords. Befitting what is now effectively a club for patricians and liberals who hate Boris Johnson, it duly sent her Nationality and Borders Bill back badly mauled. The Commons excised these amendments in short order; today, the Lords will be asked to restore them. But will it do what it’s supposed to? This is a dangerous moment for the government – not least because Shami Chakrabarti’s proposed amendment could torpedo the whole project.
This is because the most sweetly reasonable change her fix is trying to make is also the most potentially catastrophic. For over 70 years the UK, like many other nations, has been party to the 1951 Geneva Refugee Convention, dealing with when rights to asylum arise. This is a Convention that some have rightly seen as outdated and too conducive to widespread immigration abuse in an era of mass travel and people-trafficking: but unless and until we denounce it we’re stuck with it.
Many of the complaints against the Patel reforms – especially the plans to process applications in Rwanda and criminalise clandestine entry except in rather limited circumstances – take the line that these are not only immoral, but also a threat to the UK’s standing and the international rule of law because they are contrary to that Convention. This is a line the government just as vigorously denies. It insists that the UK always tries to keep its obligations, and that it is doing so here.
Take the case of the rudely healthy Somali youth decanted from a dinghy at Dungeness after a few weeks’ uncomfortable but perfectly safe sojourn in Belgium
Enter at this point what looks a neat amendment (numbered 5B) from Baroness Chakrabarti. The relevant parts of the Act, the proposed amendment says, ‘are compliant’ with the Convention, ‘and must be read and given effect as such.’ This passed by a comfortable majority. At first sight, it looks like sweet reasonableness itself. If the government says its measures are Convention-compliant, what’s wrong with just agreeing to the amendment? Actually, a great deal.
For one thing, it entails (perhaps deliberately) the transfer of a big slice of power from the elected government to the courts. Treaties are political documents, drafted as often as not to preserve ambiguity as much as to engender clarity. States sign them, only to then take opposing views and quietly agree to differ about whether they are complying. The 1951 Refugee Convention is no exception. Properly interpreted, it might implicitly ban processing asylum seekers abroad, whether in Rwanda or anywhere else. Some – notably the UN High Commissioner for Refugees and pro-immigrant pressure-groups – certainly say that it does. On the other hand, the treaty equally certainly doesn’t say so expressly, and there is an entirely plausible argument that it therefore allows the practice.
Again, the Convention undoubtedly prevents criminalisation for clandestine entry where the entrant has come directly from a state where he fears persecution and shows good cause for evading controls. But who should get the right to determine just what this means?
Take the case of the healthy Somali youth decanted from a dinghy at Dungeness after a few weeks’ uncomfortable but perfectly safe sojourn in Belgium. Has he come ‘directly’ from eastern Africa so as to deserve special treatment? Does the fact that he has almost certainly been coached by his well-paid trafficker to destroy all identification documents, mouthed the word ‘asylum’ on arrival and then, even if refused refuge, use his uncertain status to make deportation all but impossible, put in doubt his ‘good cause’ for evading the coastguard?
Determination of issues like this, inherent in the nature of international instruments, is arguably best left to governments. Judicialising the process carries distinct dangers, not least the prospect of unseemly disagreement between the judiciary and executive on the otherwise intensely political issue of foreign policy.
To make matters worse, the amendment doesn’t just turn immigration policy into a matter for the courts: it offshores them to external bodies outside our control. Calling for the future Nationality and Borders Act to be construed in line with the Convention risks requiring the seal of approval from UN bodies, such as the office of the High Commissioner for Refugees. And what happens if international pro-refugee pressure-groups and the broadly left-leaning international human rights professoriate don’t like it? Chakrabarti’s amendment means the government’s attempts to impose a border policy risk getting wrapped up in legal wrangles.
So whatever Chakrabarti’s intentions, the result is simple. If this amendment is accepted, the Bill won’t be applied according to the plain intent of the civil servants who drafted it and the elected government that enacted it. What will come to matter will be the principles dictated by UN bodies and the human rights establishment. In short, it will be doomed from the beginning to ineffectiveness – which is, one suspects, exactly what Baroness Chakrabarti and her followers quietly intended all along.
The ball is now in the government’s court. By resisting this insidious wrecking amendment it has a chance to ensure that immigration control remains where it ought to be: in the hands of an elected, accountable Home Secretary who is herself ultimately answerable to the UK electorate. If it fails, it will have only itself to blame.
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