Richard Ekins is Head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government, University of Oxford.
On 4 January, the Prime Minister promised that the Government would “pass new laws to stop small boats, making sure that if you come to this country illegally, you are detained and swiftly removed.”
Legislation to this effect has yet to be introduced to the House of Commons, but it seems likely that a Bill will be introduced in the near future.
Whether it can be enacted in time to reduce the numbers who are likely to cross this year remains to be seen. Whether it can be enacted in this Parliament, before the next general election, is also an open question.
But even if a new Bill is enacted, will it make any difference?
Everything turns on the detail of the Government’s legislative proposals, and on how the Bill is amended as it makes its way through the Houses of Parliament. It seems inevitable that many parliamentarians will categorically reject any Bill on this subject as unjust and imprudent, much as they denounced the Nationality and Borders Act 2022.
Others, who support the Government’s pledge, might well ask whether a new Bill is likely to prove any more effective than the 2022 Act in stopping the Channel crossings.
New legislation is required to stop people entering the UK unlawfully – without entry clearance – on small boats. The existing legal framework is not working. The Government’s plan to remove some asylum-seekers to Rwanda, where their claims are to be processed by Rwandan officials, has been blocked for now by the European Court of Human Rights, and continues to be the subject of challenge in our own courts.
It is possible that the Government may eventually prevail in domestic and European litigation (it had some success before the High Court just before Christmas), but in the meantime its policy seems impossible to implement. Legislation can change this.
What the Government needs is to commit to a policy that any person who arrives unlawfully in the UK on a small boat from a safe state, such as France, will be removed from the UK and never permitted to settle here.
Parliament needs to support this policy with legislation – legislation which does not merely permit the Home Secretary to pursue such a policy, but which requires her to carry it out. That is, Parliament must enact a Bill that mandates removal, specifying the actions that the Home Secretary must take and protecting those acts from frustration in the courts.
If new legislation fails adequately to address the risk of judicial challenge, then the policy is likely in the end to prove conditional, implemented only if or when the courts are happy with it.
In a recent paper for Policy Exchange, How to legislate about small boats, Sir Stephen Laws, a former First Parliamentary Counsel, and I outline the shape that new legislation should take.
We hope that ministers finalising policy – and instructing parliamentary counsel – will consider our checklist of requirements which we say new legislation should meet. Concerned parliamentarians should do the same, for there must be a risk – which Parliament must take seriously – that new legislation only appears to address the problem, but in fact proves ineffective in practice.
The lynchpin of the Bill should be a new duty on the Home Secretary to remove persons from
the UK if they are unlawfully in the country following an arrival or attempted arrival by small boat from a safe country.
It would be a mistake for the legislation to apply to all unlawful migrants. The Channel crisis has particular features that warrant a bespoke regime. If one widens the scope to all unlawful migration, a legislative mandate for removal becomes much harder to justify.
The Home Secretary’s duty to remove persons from the UK under the legislation should be qualified by reference only to the need (where the matter is in question) for a certificate of fitness to fly and to a prohibition on refoulement.
Unfitness to fly would be a reason to delay removal, not to cancel it altogether, and while the Home Secretary would never be able to return a person to a country where he or she faced a risk of persecution (within the meaning of the Refugee Convention 1951), removal to any other country or territory would be lawful.
The duty to remove should apply to all persons, including unaccompanied children, who arrive or attempt to arrive unlawfully in the UK on a small boat from a safe country.
If the legislation does not extend to unaccompanied children, questions (and litigation) about whether a person is a child will derail implementation of the policy. In addition, such an exception will encourage unaccompanied children to make (or to be made to make) the crossing, which puts their lives in danger.
The legislation should not apply to everyone who has ever crossed the Channel in this way, but only to those who cross on or after a specified date – possibly the date on which the legislation is introduced to the House of Commons. If the legislation only applies to crossings after royal assent is received, this will encourage many more unlawful crossings.
The legislation needs to be carefully drafted to avoid frustration. The new Bill should make clear that modern slavery legislation cannot prevent the removal from the UK of a person to whom the Bill applies.
Importantly, the Bill should disapply the operative provisions of the Human Rights Act in relation to the new legislation. What this would mean was that the law about removal from the UK of persons who arrive on a small boat would be settled by this new Bill, which would not be subject to distortion by reference to Convention rights.
The minister introducing this new Bill should make a statement that it is compatible with Convention rights, in accordance with section 19(1)(a) of the Human Rights Act. The point is that Parliament’s choices, in enacting the Bill, should not be second-guessed, or glossed, by the courts in the course of human rights litigation.
Parliament should anticipate the likelihood of judicial review proceedings challenging the Home Secretary’s discharge of her duty to remove persons from the UK. The new Bill should confine judicial review to cases where the Home Secretary’s decision is manifestly unfounded:
- as to the identity of the claimant;
- as to the unlawfulness of their presence in the UK or their means and date of arrival, (c) as to any assessment of fitness to fly;
- or as to whether removal to the relevant destination would constitute refoulement.
The courts should have no other role in this context and the legal framework should be streamlined accordingly.
These changes are necessary if implementation of the legislation is not to be halted in British courts. But Parliament needs also to address the strong likelihood that the European Court of Human Rights will attempt to frustrate removals by again, as in June last year, issuing so-called interim measures under Rule 39 that purport to order the UK not to remove someone from the UK.
The new Bill should specify that removal should proceed notwithstanding any obligation arising otherwise than by virtue of requirements imposed by the new legislation itself and, in particular, should proceed regardless of any Rule 39 interim measure or any judgment or other decision of the Strasbourg Court. If it is framed in this way, the new Bill will make a very real difference.
Richard Ekins is Head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government, University of Oxford.
On 4 January, the Prime Minister promised that the Government would “pass new laws to stop small boats, making sure that if you come to this country illegally, you are detained and swiftly removed.”
Legislation to this effect has yet to be introduced to the House of Commons, but it seems likely that a Bill will be introduced in the near future.
Whether it can be enacted in time to reduce the numbers who are likely to cross this year remains to be seen. Whether it can be enacted in this Parliament, before the next general election, is also an open question.
But even if a new Bill is enacted, will it make any difference?
Everything turns on the detail of the Government’s legislative proposals, and on how the Bill is amended as it makes its way through the Houses of Parliament. It seems inevitable that many parliamentarians will categorically reject any Bill on this subject as unjust and imprudent, much as they denounced the Nationality and Borders Act 2022.
Others, who support the Government’s pledge, might well ask whether a new Bill is likely to prove any more effective than the 2022 Act in stopping the Channel crossings.
New legislation is required to stop people entering the UK unlawfully – without entry clearance – on small boats. The existing legal framework is not working. The Government’s plan to remove some asylum-seekers to Rwanda, where their claims are to be processed by Rwandan officials, has been blocked for now by the European Court of Human Rights, and continues to be the subject of challenge in our own courts.
It is possible that the Government may eventually prevail in domestic and European litigation (it had some success before the High Court just before Christmas), but in the meantime its policy seems impossible to implement. Legislation can change this.
What the Government needs is to commit to a policy that any person who arrives unlawfully in the UK on a small boat from a safe state, such as France, will be removed from the UK and never permitted to settle here.
Parliament needs to support this policy with legislation – legislation which does not merely permit the Home Secretary to pursue such a policy, but which requires her to carry it out. That is, Parliament must enact a Bill that mandates removal, specifying the actions that the Home Secretary must take and protecting those acts from frustration in the courts.
If new legislation fails adequately to address the risk of judicial challenge, then the policy is likely in the end to prove conditional, implemented only if or when the courts are happy with it.
In a recent paper for Policy Exchange, How to legislate about small boats, Sir Stephen Laws, a former First Parliamentary Counsel, and I outline the shape that new legislation should take.
We hope that ministers finalising policy – and instructing parliamentary counsel – will consider our checklist of requirements which we say new legislation should meet. Concerned parliamentarians should do the same, for there must be a risk – which Parliament must take seriously – that new legislation only appears to address the problem, but in fact proves ineffective in practice.
The lynchpin of the Bill should be a new duty on the Home Secretary to remove persons from
the UK if they are unlawfully in the country following an arrival or attempted arrival by small boat from a safe country.
It would be a mistake for the legislation to apply to all unlawful migrants. The Channel crisis has particular features that warrant a bespoke regime. If one widens the scope to all unlawful migration, a legislative mandate for removal becomes much harder to justify.
The Home Secretary’s duty to remove persons from the UK under the legislation should be qualified by reference only to the need (where the matter is in question) for a certificate of fitness to fly and to a prohibition on refoulement.
Unfitness to fly would be a reason to delay removal, not to cancel it altogether, and while the Home Secretary would never be able to return a person to a country where he or she faced a risk of persecution (within the meaning of the Refugee Convention 1951), removal to any other country or territory would be lawful.
The duty to remove should apply to all persons, including unaccompanied children, who arrive or attempt to arrive unlawfully in the UK on a small boat from a safe country.
If the legislation does not extend to unaccompanied children, questions (and litigation) about whether a person is a child will derail implementation of the policy. In addition, such an exception will encourage unaccompanied children to make (or to be made to make) the crossing, which puts their lives in danger.
The legislation should not apply to everyone who has ever crossed the Channel in this way, but only to those who cross on or after a specified date – possibly the date on which the legislation is introduced to the House of Commons. If the legislation only applies to crossings after royal assent is received, this will encourage many more unlawful crossings.
The legislation needs to be carefully drafted to avoid frustration. The new Bill should make clear that modern slavery legislation cannot prevent the removal from the UK of a person to whom the Bill applies.
Importantly, the Bill should disapply the operative provisions of the Human Rights Act in relation to the new legislation. What this would mean was that the law about removal from the UK of persons who arrive on a small boat would be settled by this new Bill, which would not be subject to distortion by reference to Convention rights.
The minister introducing this new Bill should make a statement that it is compatible with Convention rights, in accordance with section 19(1)(a) of the Human Rights Act. The point is that Parliament’s choices, in enacting the Bill, should not be second-guessed, or glossed, by the courts in the course of human rights litigation.
Parliament should anticipate the likelihood of judicial review proceedings challenging the Home Secretary’s discharge of her duty to remove persons from the UK. The new Bill should confine judicial review to cases where the Home Secretary’s decision is manifestly unfounded:
The courts should have no other role in this context and the legal framework should be streamlined accordingly.
These changes are necessary if implementation of the legislation is not to be halted in British courts. But Parliament needs also to address the strong likelihood that the European Court of Human Rights will attempt to frustrate removals by again, as in June last year, issuing so-called interim measures under Rule 39 that purport to order the UK not to remove someone from the UK.
The new Bill should specify that removal should proceed notwithstanding any obligation arising otherwise than by virtue of requirements imposed by the new legislation itself and, in particular, should proceed regardless of any Rule 39 interim measure or any judgment or other decision of the Strasbourg Court. If it is framed in this way, the new Bill will make a very real difference.