The government is rattled on immigration. Forget its liberal metropolitan supporters: just-about-managing voters from Whitehaven to Waltham Cross are deadly serious about the need to curb the numbers coming here. After a last-minute get-tough announcement by Yvette Cooper failed to stop massive Reform gains earlier this month, Keir Starmer has now gone on the attack with a migration White Paper.
If Labour is to convince potential Tory and Reform electors that it is serious about immigration, vague words are not enough
Apart from making it more difficult for migrants to obtain full residency rights, and tightening English language and education requirements, this proposes changing the law to stop foreign criminals and illegal migrants winning the right to stay on human rights grounds. Currently the strong presumption in favour of deportation is subject to a showing of exceptional circumstances, or in the case of those imprisoned for four or more years ‘very compelling’ ones. Unfortunately, in practice what is seen as exceptional seems to have been expanding alarmingly. The White Paper promises to tip the balance in favour of deportation by strengthening the presumption in favour of removal and narrowing the exceptions to it.
Will this work? It’s a bit unclear until we see the precise change in wording proposed, which we haven’t yet. However, the omens are not good.
First, immigration law already stresses hard the exceptionality of any decision to block deportation. Indeed, it’s difficult to think how it could be stressed much harder. The problem lies not so much in the law’s dry words, but in their interpretation by tribunals up and down the country. Exceptionality – and its relative, the requirement of ‘very compelling’ circumstances – are, after all, a matter not of precision but of evaluation. Immigration judges, whether because they have passed through universities staffed by predominantly liberal law teachers or because there is a close correlation between expertise in immigration and human rights law and a liberal outlook, will tend for better or worse to apply them generously. However the words are strengthened, one fears that when the chips are down a well-constructed submission of possible trauma resulting from expulsion will likely lead to individual cases going much the same way.
Secondly, however, there is the ever-looming background of the European Convention of Human Rights. The tendency towards generous interpretations of what amount to exceptional or compelling reasons not to deport criminals are also informed by human rights arguments: notably, the ECHR’s protection for privacy and family life in Article 8, or occasionally its prohibition of inhumane treatment in Article 3.
This point, which the White Paper skates over, creates two big stumbling blocks for the government. One is that the interpretation of the ECHR does not lie in the UK government’s gift: it is a matter for the European Court of Human Rights in Strasbourg, and a UK statute cannot alter it. The other is that any UK legislation has if possible to be interpreted in accordance with the ECHR as interpreted in Strasbourg. The result is that even if the legislation were strengthened, any effect would be limited: any new standards would have to remain at least partly open-ended, and there is a clear danger that in applying them courts would continue to follow what they saw as the tendency of human rights law.
It’s hard not to conclude that something has to give: we can have a strict rule on removal of foreign criminals, or we can have strict compliance with the ECHR, but we can’t have both. To their credit the Conservatives and Reform have noted this: the Tories have made it clear that if necessary they are prepared to face the prospect of leaving the ECHR, and Reform have simply said they will leave.
Unfortunately, Labour has not grasped this. Asked this morning about the potential conflict between human rights and effective immigration control and whether he might have to choose between them, Keir Starmer obstinately insisted that he could continue to support both at the same time. True, he probably had little choice: even if White Van Man cares infinitely more about immigration than human rights, Labour’s parliamentary and intellectual machine is wedded to the present ECHR regime.
This bodes ill for Labour. The problem is that Keir’s answer was patently vague and uninformative. He did not explain how he thought he could back tighter rules on deportations while at the same time preserving the existing human rights landscape: and his further arguments that only by being members of the ECHR could the UK get agreements with other countries for the return of foreign migrants rings hollow.
Starmer may not like it, but if Labour is to convince potential Tory and Reform electors that it is serious about immigration, vague words are not enough: it will have to say explicitly that if push comes to shove the ECHR is expendable. The longer he continues to try to ride two horses simultaneously, that of concerned human rights activist and that of immigration hawk, the heavier and more uncomfortable his fall will be.
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