The Home Secretary’s extension of the list of countries covered by the ‘deport now, appeal later’ scheme for foreign criminals, announced this morning, doesn’t actually add to the number of undesirables that we can deport. But it could lubricate the process of getting rid of them.
Barring a Damascene conversion of the Strasbourg court, something pretty inconceivable, withdrawal is fast becoming not only an option, but the only option
For criminals from the new countries just added, which include a number of African and Asian states, India, Canada and Australia, it means that once the Home Secretary rejects an objection based on human rights grounds, physical removal can be automatic. The deportee can still appeal, but any appeal has to be pursued from abroad. This not only saves us the cost of supporting and detaining them here but reduces the possibility of them either disappearing into the black economy, or arguing that the passage of time has itself created of a link with this country so strong as to make their removal inhuman.
This is a step in the right direction. But it is a pretty limited one. There are 700-odd prisoners from the new countries in our jails who will be subject to the new rules; but this is around half the number who come from Albania alone, which tops the list of foreign suppliers of convicts to our penal system and which was already part of the scheme even before its extension. One doubts whether extended human rights claims against removal by, say, unwanted Canadians or Australians are a serious problem. By contrast, we have large numbers of Polish, Romanian, Lithuanian, Jamaican, Pakistani and Somali jailbirds on our hands whom we would love to be summarily rid of, but are still not covered.
Tough-sounding measures of this kind are all very well. But they have a history of coming unstuck. We have been here before. Legislation in 2014 would have allowed all deported criminals to be put on the first plane out and then appeal from abroad. Unfortunately this very salutary provision was declared non-human-rights-compliant three years later by a liberal Supreme Court unhappy about the difficulties faced by criminal deportees forced into long-distance litigation.
The present scheme aims to sidestep this by requiring provisions for pursuing effective online appeals from abroad: countries are not added unless and until these have been agreed. But it would be foolish to rule out a UK court, or the European Court of Human Rights, saying that an applicant has not had a chance to put his case. We also cannot exclude a court staying physical expulsion on the basis that the trauma of immediate removal, say of a criminal with alleged mental health issues, is itself a breach of human rights.
This is, in other words, largely an exercise in tinkering. Furthermore, even if it works it will not make a serious dent in the numbers of foreigners who successfully demand to stay despite having grossly abused our hospitality. To do this, the government knows perfectly well about the migrant elephant in the room. In the last resort something must be done about the European Convention on Human Rights. Whether litigation takes place in the Strand or in the legal ether over a Zoom link from abroad is largely beside the point: even where a person otherwise fulfils the criteria for removal, it always remains open under the Convention to argue that if removed their family life would be destroyed, or that they would face ill-treatment abroad. (Some, indeed, have successfully, if impudently, resisted removal precisely because of the hostility they would face at home as a result of their having committed a heinous crime here.)
This cannot go on. I can quite legitimately eject someone from my house who has taken sanctuary there if they start smashing up my furniture, even if I know a baying mob outside will brutalise them as a result. The same should go for a country: the right to refuge, even from those out for blood, should be able to be lost as a result of serious misbehaviour. Unfortunately this is what Strasbourg, with its almost religious view of human rights, will not accept.
In the end, there is only one way out. Barring a Damascene conversion of the Strasbourg court, something pretty inconceivable (witness its petulant brush-off three months ago of a suggestion from a number of countries including Denmark, Poland and Italy that it should soften its line on migrants’ rights), withdrawal is fast becoming not only an option, but the only option. A number of Red Wall MPs, painfully aware of public opinion, are already making noises along these lines. For the moment this is anathema to Yvette Cooper, and even more so to Keir Starmer and Lord Hermer. But sooner or later Labour, if it wants to avoid electoral irrelevance, will have to think seriously about it.
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