You can’t pass legislation to secure our borders three times, fail every time, and maintain public trust. It’s three strikes and you’re out.
So the Conservative Party has one last chance to stop the endless small boat crossings that are causing untold damage to this country. And one last chance to prove to the rest of the Western world, which is watching the outcome of the Rwanda policy with fingers crossed, that it really is a blueprint for establishing border security in this era of mass migration.
The instrument we currently have to solve this problem is the Rwanda Security Act. Indeed, as the government has boasted, it is going further than ever before in its efforts to solve the problem. But where this bill compares to the two previous bills that tried to stop the boats is frankly irrelevant. The only question that matters – one that has been largely absent from the debate so far – is: will the bill ensure that the Rwanda policy can work? Does this end the merry-go-round of legal challenges that prevent small boat arrivals from being quickly removed in sufficient numbers to create a meaningful deterrent?
After doing as much as I could as Immigration Minister to strengthen the legislation, I came to the conclusion that, unfortunately, the answer is no. I have therefore resigned and explained in detail the main shortcomings that needed to be corrected.
In short, as it is currently set up, any small boat arrivals will be able to come up with a personal reason why Rwanda is unsafe for them and they cannot be removed. This will lead to individuals being taken off flights, the courts being overwhelmed and a policy collapse, with illegally arrived people being released from detention on bail as the backlog of hearings grows.
As night follows day, the Strasbourg Court will once again issue interim rulings, of the kind that prompted the first attempted flight to Rwanda in the summer of 2022. Currently, ministers are only allowed to disregard such measures in very limited circumstances and in the highly contentious circumstances Legal advice that ministers are bound by is that even exercising such power would be a breach of international law. In practice, I know that the cases where this will be used will be extremely rare, if ever, and so the policy will fail on first contact with reality.
Despite attempts by concerned MPs to strengthen the bill, the government has failed to make the necessary improvements. That is why Sir Bill Cash and I have tabled sixteen amendments, supported by over fifty MPs and counting, with the aim of passing the Bill when it returns to the House of Commons next week.
The test the Prime Minister has set for the government to accept amendments to the bill is that they must have a respectable international law argument. I would argue that when it comes to an issue like border security, the government should place this vital national interest above contentious views of international law or our ‘reputation’ in the international circuit.
It will become clearer to the public over time that Britain’s membership of the European Convention on Human Rights (ECHR) is untenable and that the treaty is not reformable. But it is important to emphasize that this is not the question being debated in parliament next week, nor the purpose of these amendments.
My amendments have been carefully drafted in collaboration with leading lawyers to meet the Prime Minister’s threshold, with legal advice joining them from the former Attorney General for Northern Ireland and law professor, John Larkin KC.
For now, I am trying to correct the worst excesses of the overtly political Strasbourg Court, namely its tendency to issue interim measures like those that derailed the flights in the summer of 2022. Launching the Rwanda plan without addressing the Strasbourg Court’s activism is like pulling the pin out of a grenade but not having the foresight to throw it. The former Chief Justice, Lord Sumption, puts it more elegantly: “If interim measures are available in these types of cases, it is likely that no legislative scheme for the immediate removal of illegal immigrants can succeed.”
Crucially, the Court only granted itself the power to issue these binding interim orders in Mamatkulov and Askarov v Turkey (2005), despite the fact that Britain and all other original signatories deliberately did not exercise this power in 1949 had included in the founding statute. Under international law, a court has only the powers given to it by the Member States: in the absence of such power, the Strasbourg Court has no power to issue such measures and we are not obliged to comply with them.
As Richard Ekins, professor of law and constitutional government at the University of Oxford, has argued, by refusing to comply with these Rule 39 rulings, Britain would be defending, not ignoring, the rule of law. My amendments make the law clear that these orders are simply advisory and not binding on the Government in any way, meaning the default for ministers is to ignore the foreign court and guarantee flights can disembark.
But token flights that are largely empty will provide no credible or lasting deterrent for those considering crossing in the safety of France. The policy intention should be to ensure that recent illegal arrivals are removed quickly and on a large scale. That is why my second set of amendments maximizes the number of small boat arrivals eligible for removal by significantly limiting the ability of illegal arrivals to make individualized claims that they cannot be removed.
Currently, the bill is operationally unworkable as these claims will significantly reduce the number of illegal arrivals on removal flights and will take months to consider. And in this respect the bill is also intellectually incoherent – if the fundamental premise of the bill is that Rwanda is safe, it follows that any claim that it is unsafe for any specific individual can be heard once in Rwanda. Under my amendments, relocations to Rwanda would only be suspended in the extremely rare cases where medical problems mean someone is unable to fly, creating the most powerful deterrent possible.
Finally, I seek to broaden the exclusions of the Labor Human Rights Act. Before my resignation, I ensured that large parts of the Human Rights Act (which gives effect to the ECHR in English law) no longer apply, but under sections 4 and 10 of the Human Rights Act, which remain , a court could quickly issue a judgment. declaration of incompatibility with the ECHR.
At such a stage the government would not be obliged to change the legislation; however, it would come under enormous pressure from operating partners and the government legal service. If the Government intends to ignore such a ruling, it should accept my amendment, which excludes sections 4 and 10 of the Human Rights Act. If that is not the case, we can only conclude that the country will be willing to suspend the Rwanda policy.
To reject these amendments and press ahead with a bill that the Government knows, based on extensive internal advice, will not work would be a betrayal of the British public. It would be completely undermining to have faith in Democratic politics, given the promises that have been made continuously over the past five years. And it would be disastrous for the country if communities were exposed to the harms of illegal migration, with the poorest, who are most exposed, suffering the most. If there have been 100,000 illegal arrivals in the last five years, such are the macro trends and such is the impotence of the EU, then I see no reason why we will not see another 100,000 in the coming years.
As legislators, we have the power to avert this catastrophe, because in our sovereign parliament the law is our servant, not our master. We owe it to our voters – whose interests we must send to Parliament – to deliver results. They will tolerate nothing less.
Robert Jenrick MP is a former immigration minister
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