10 March 2023

What is the Point of the UK’s Illegal Migration Bill?

The introduction of the Illegal Migration Bill to the UK Parliament appears to be the latest outburst of the Conservative government’s increasing hysteria with respect to the small boat crossings of the Channel in which Brexit-released fantasies of post-imperial sovereign power are acted out in the form of half-baked legislative proposals. The politically inconvenient fact that most of the 15% of asylum seekers who reach UK territory in this way are found to have legitimate asylum or protection claims seems to be a particular source of rage with a leaked Conservative Party email to party members under Suella Braverman’s name blaming “an activist blob of leftwing lawyers, civil servants and the Labour Party” for boat crossings, which at least suggests she knows her audience. This is “Build the Wall” for an island nation and, like Trump’s project, its primary value is as a fantasy object rather than a practical project.

Promises of an Asylum Ban

Taken at face value, the current Bill proposes to do four main things:

  1. It gives the Home Secretary the power to detain anyone who enters the UK by irregular or non-legal means such as small boat crossings or stowing away in a lorry having come from a safe country (e.g., Albania) or who has passed through what is deemed to be a safe country where asylum could have been claimed (e.g., France). They are to be detained without bail or judicial review within the first 28 days of detention, and such detention may be continued beyond this period so long as the Home Secretary judges that a reasonable prospect of removal is available.
  2. It places the Home Secretary under a duty to ensure removal of all those so detained (with the exceptions of children under the age of 18, persons seriously ill who are judged medically unfit to fly, and individuals at real risk of serious and irreversible harm in the country to which they are presumptively being moved) to a safe country which is either their own (e.g., Albania) or a third country (e.g., Rwanda).
  3. These powers of removal will apply irrespective of whether the irregular entrant makes an asylum claim, a human rights claim, a claim to be the victim of human trafficking or slavery, or an application for judicial review. Appeals are generally to be made from the safe country to which the applicant has been removed.
  4. Anyone rightly so removed will be subject to a life ban from entry into the UK.1)

Apart from granting the Home Secretary even more scope for arbitrary decision-making, probably the most important legal effects of the Bill are the duty to remove and that it would make asylum claims by irregular entrants “inadmissible”. This is an asylum ban for those who have no realistic legal route to the UK (that is effectively everyone who is not covered by a “bespoke” scheme such as those for Ukraine, Hong Kong and, in some dysfunctional sense, Afghanistan).2) The spurious rationale for such draconian methods is that this is the only way to break the smuggler’s business model. (In this respect it has parallels with the EU’s self-serving excuses for facilitating asylum seekers being returned to sites of appalling human rights abuse in Libya.)

For all these reasons the UNHCR’s statement on the UK Bill is untypically sharp in tone:

UNHCR, the UN Refugee Agency, is profoundly concerned by the asylum bill introduced by the UK Government to the House of Commons today. In its current form, the Bill compels the Home Secretary to deny access to the UK asylum system to those who arrive irregularly. … The legislation, if passed, would amount to an asylum ban – extinguishing the right to seek refugee protection in the United Kingdom for those who arrive irregularly, no matter how genuine and compelling their claim may be, and with no consideration of their individual circumstances.

… This would be a clear breach of the Refugee Convention and would undermine a longstanding, humanitarian tradition of which the British people are rightly proud.

This objection is not one which will carry any weight with the current government; on the contrary, it may be helpful to the ideological fight that this Bill is attempting to provoke and to situate on ground of the Conservative Party’s choosing.

It’s Policy Jim, But Not As We Know It

If we think about the Bill as if it a genuine attempt at practical policy-making, we would immediately confront the fact that it will face a number of legal challenges as well as practical challenges since it is currently unworkable. The most obvious practical challenges arise from the fact, first, that detaining anything like current numbers of irregular entrants claiming protection would require at least a 400-500% increase in the UK detention estate and, second, that the UK does not have adequate returns and removal agreements in place to carry out the proposed policy. And such agreements are hard to secure at the levels likely to be required (as the EU is also discovering). In the absence of such agreements, the proposed law is liable to produce bizarre effects as Jon Featonby of the Refugee Council has noted:

One of the rather perverse implications of the new asylum bill is that the Home Office will end up indefinitely accommodating and supporting people whose asylum claims they could refuse and then return if they actually processed their claim. Because someone’s claim would be automatically inadmissible, it won’t actually be processed. But unless they’re from a list of EU+ countries, they can’t be returned to their own country. Without 3rd country agreements, they’ll then stay in the UK, but the Home Secretary has barred herself from considering those claims. So even if someone doesn’t have a strong asylum claim, could be refused and then returned to their own country, that won’t be able to happen. But they will have access to support and accommodation in the UK.

In terms of law, Joshua Rozenberg has suggested that the fact that such a law would deem asylum claims by irregular entrants “inadmissible” may be a breach of Art.34 of the ECHR, and a former government lawyer Jonathan Jones has commented “The government itself accepts the bill may well breach a whole toxic soup of ECHR rights (life, torture, slavery, fair trial, detention, family and private life, discrimination, right to a remedy).”3) It is presumably this point which led Suella Braverman to acknowledge, as she is legally bound to do under the Human Rights Act 1998, that the proposed law may be incompatible with ECHR but that the government wishes to proceed with it anyway.

But the Bill is not primarily a genuine attempt at serious policymaking, its primary role is to be the vehicle of sovereign fantasies for voters and of political traps for the Labour Party.

Mobilizing Sovereign Desires

What is happening here is that the Conservative Party are shifting into (long) campaign mode. The next UK General Election must be held no later than 24 January 2025. It strikes me as somewhat unlikely, given the legal and practical challenges of the policies proposed in this Bill, that it is likely to be fully practically implemented prior to whenever the next General Election is held; but if it is the law and an adverse ECHR ruling is made, the government will drag their feet on compliance until the election. This matters because, unless something dramatic changes, the Conservative Party expect to lose that election and are desperate to retain as many seats as possible. From this perspective, the Bill has an important performative role in providing the Conservatives with a populist instrument through which to whip up anti-immigrant sentiments and to make electoral hay of the claim that the Labour Party are unwilling to take the hard decisions needed to bring UK borders under control. Because the Bill cultivates the illusion that the UK government can control its borders, but only if it is prepared to bite certain human rights bullets, it serves the useful ideological role of trying to lock the Labour Party into a political dilemma: either it argues that there cannot be any effective regulation of asylum flows to the UK without significant levels of international cooperation which, despite being true, is a tricky argument to present politically in post-Brexit Britain or it is constrained to move in the direction taken by the Conservatives but will inevitably appear as a weak, half-hearted version of this stance.

At the same time, all of this also serves to portray human rights as a threat to British rights and that is an additional benefit. By trying to make the issue of ‘small boats’ into the site on which human rights are debated, the Conservatives are trying to mobilise the desires and wishful thinking of Brexit supporters (to whom they have delivered less than nothing of the benefits promised) and trap the Labour party into defending human rights on a ground of the Conservatives choosing. The relentless government and media framing of those crossing the channel in small boats as ‘illegal immigrants’ (borrowing a Salvini trope) has created public mistrust towards the channel-crossers as ‘queue-jumpers’ (adopting an Australian trope) despite public support for refugees remaining positive, this makes it fertile ground for Conservative fantasy-making.

The Conservative Party do not intend (I think!) to abandon the ECHR, not least because it is integral to the Good Friday Agreement as well as continuing agreements with the EU. But for their political purposes, they do not need to abandon it, they simply need to cultivate resentment against yet another form of ‘European’ interference and continue the fantasy that human rights are a fundamental threat to the sovereign rights of the British people. This performative populism is not without political risks but, given opinion polls over the last several months, it may be that the Conservatives feel that there is little to lose. That they will further weaken the right to seek asylum and refugee protection is not a politically significant consideration for them any more than it has been for a number of other governments (e.g., Australia, Italy, USA) who have gone down this road in the past and from whom the UK government has chosen to borrow and learn.

Acknowledgements

I am grateful to Chris Bertram, Phil Cole, John Denham, Matthew Lister, Simon Nicholson, and Colin Yeo for quick and very helpful comments on an earlier draft.

References

References
1 For a preliminary legal analysis of the Bill, see: https://freemovement.org.uk/what-is-in-the-illegal-migration-bill/
2 The UK does have a very small resettlement program but this is unlikely to a realistic option for most asylum seekers with genuine connections to, and good reasons to wanting to claim asylum in, the UK.
3 Both cited in https://www.theguardian.com/uk-news/2023/mar/08/what-are-the-legal-obstacles-faced-by-the-uks-migration-bill-suella-braverman

SUGGESTED CITATION  Owen, David: What is the Point of the UK’s Illegal Migration Bill?, VerfBlog, 2023/3/10, https://verfassungsblog.de/what-is-the-point-of-the-uks-illegal-migration-bill/, DOI: 10.17176/20230311-065230-0.

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