Without reform of the Human Rights Act, the migrant crisis will continue

Our law is one of the main causes of the crisis in the Canal. It makes preventing further crossings practically impossible. Trying to resolve the crisis without changing the law should prove in vain. The law on citizenship and borders that is now before Parliament is not going to do what is required.

The 1951 Refugee Convention is not the central problem. It obliges states to protect refugees on their territory, which requires our authorities to check whether those within the UK who apply for asylum are refugees within the meaning of the Convention. That is, are they fleeing the persecution? Not everyone who escapes from difficult times at home is a refugee in the strict legal sense.

The Convention does not oblige the UK or any other Member State to allow asylum seekers to enter its territory. It carefully preserves the right of the state to refuse entry to asylum seekers and even to expel refugees from its territory if they pose a threat. In any case, no refugee has a legal right to stay in a safe country of his or her choice. The United Kingdom is completely free to refuse entry from France as far as the Refugee Convention is concerned.

The European Convention on Human Rights (ECHR) is a much more serious problem, not because the UK and other states actually agreed to it in 1950, but because the European Court of Human Rights has redesigned it over time. As John Finnis QC (Hon) and Simon Murray explain in a recent Policy Exchange paper, the Strasbourg court took advantage of the idea that the ECHR is a “living instrument” to invent a new European immigration law that states from effective Border controls frustrated or deported illegal migrants, including rejected asylum seekers.

The little boats won’t stop coming until it is clear that one cannot enter and stay in the UK by crossing the English Channel. If small boats were intercepted on the high seas and brought back to France before entering the UK, the tugboat business model would collapse. But the repatriation of boats and their passengers in French waters or French soil requires French consent. The moral reason for such an agreement is obvious, but unfortunately that doesn’t make it likely.

How about simply refusing entry into British waters? The UK would have the right to do just that under international law. Haunted by reality, the Strasbourg court last year upheld the legality of Spanish “pushback” operations under conditions of mass entry (across land borders), conditions that Britain is now certainly under (albeit with maritime borders). In any event, the ECHR, properly interpreted, does not prevent the United Kingdom or any other Member State from refusing entry at the border of its territory to a person wishing to enter. The UK should categorically claim that it retains this legal right.

Turning boats in the English Channel is not easy, however. It is likely that they would be sunk within sight of British ships, which would force a rescue operation. And the dangers of fatal accidents on this exceptionally busy shipping route are obvious. Furthermore, the UK does not enjoy Australia’s relative advantage in terms of distance from neighboring countries: small boats returning to French waters may well turn around and try again.

The solution is a law that stipulates that anyone who crosses the English Channel without permission to enter the UK cannot stay in the country – or even enter the UK and argue for a right to stay there in court. Without an agreement with the French, this means intercepting at sea and processing asylum applications at an offshore location, finding agreements with some countries to accept real refugees and with other countries to accept rejected asylum seekers.

Without a change in the law, every single step in such an operation would be challenged in court. The Human Rights Act 1998 would be used to prevent the deportation of many of those intercepted or rescued at sea to an offshore location and to require that some be admitted to the UK, whether for family reunification or in accordance with the recent decisions by the Strasbourg court to prevent deportation to a place where there is no first world medical care or a high crime rate.

Intercepting boats and processing asylum applications offshore promises to destroy human traffickers’ business model and end the crisis, save lives and restore the UK’s borders.

But if the legislation doesn’t address human rights law, that solution will quickly sink into litigation and is very unlikely to be successful. Britain must also be ready to face the Strasbourg court. Until then, the traffickers will continue their deadly trafficking.

Richard Ekins is Head of the Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government at Oxford University

https://www.telegraph.co.uk/news/2021/11/28/without-reform-human-rights-act-migrant-crisis-will-continue/