At some point during recent years, a criminal made a lucrative discovery – namely, that one can pack a small boat, scarcely more than a motorised raft, with young men on Normandy’s beaches, and then steer it across the English channel, thereby allowing them to enter Britain irregularly, if not illegally. And charge them several thousand pounds per head for doing so.
About 1,800 people were detected as entering in 2019: the real number will have been higher, Then some 8,500 people in 2020. Then over 25,000 in 2021. Then the best part of 46,000 in 2022. Now that this new means of cheating the asylum system has been stumbled across, audacious in its simplicity and replicable at scale, it cannot be disinvented – or easily circumvented. It is unfair to refugees who enter by legal means, and makes a mockery of control of our borders.
Indeed, it suggests that government is no longer capable, even if willing, to control very much at all – feeding a powerful sense that nothing in Britain works as it should, from getting a new passport to obtaining a doctor’s appointment to catching a train. This is poisonous for public confidence in our democracy.
Tackling the problem is complicated by the Refugee Convention, drawn up the best part of 70 years ago in very different world, which opens up countries to unlimited refugee numbers (at least, if these can’t be transferred to countries in which they will be safe). And then there is the impact of the European Court of Human Rights, of the Convention which it passes judgements, and of Tony Blair’s Human Rights Act to consider.
You may argue that the small boat entrants come from France – a safe country for refugees on any reasonable measure – or that they aren’t really refugees at all, since the evidence suggests that most are young men of working age. However, that is not the view of the authorities and the courts.
As MigrationWatch points out, our asylum grant rate in 202 at the initial decision stage was nearly three times that of France (72 per cent compared with 25 per cent). “The UK grant rate is now a permissive outlier compared with most of Europe and, by September 2022, had risen by more than 40 percentage points since 2016, when just a third of applications were approved at first instance,” it notes.
Before turning to the two logical solutions to the problem, it is important to deal with the halfway house one – namely, allowing people to apply for asylum from abroad, at least in France. This is founded on the assumption that those who now seek to enter Britain via our coasts will then do so instead via our consulates (or elsewhere).
In a world in which travel from abroad and demand to enter Britain were limited, such a plan might work. In one in which neither is the case, there is good reason to be very sceptical – and believe that such a plan would likely to result in new entry queues without stopping the boats, so raising the number of entries overall. If France won’t take returns, that leaves two logical solutions standing.
The first is simply to shrug our shoulders, and accept unlimited numbers of entrants. This is the preferred solution of an asylum lobby of lawyers, left-wing activists and NGOs, much of which depends on the system for a living, even if it is a bit shy of actually saying so.
The second is slicing through the Gordian knot of conventions and obligations that make border control so difficult in the modern world – if not actually impossible. It may come to that, though there would be passionate opposition as well as support even for the option of bringing human rights home, so to speak, by putting them in the hands of Parliament and MPs rather than the courts and the judges.
The Government believes that it doesn’t have to take this course, and Suella Braverman will today announce its new policy package, in the wake of the fifth of Rishi Sunak’s pledges, the only non-economic one in the series: “we will pass new laws to stop small boats, making sure that if you come to this country illegally, you are detained and swiftly removed”.
“The best prescription looks like being that which Richard Ekins of Policy Exchange set out recently on this site. Concentrate the new legislation on small boats. Narrow the grounds for individual appeals. Remove the applicability of sections of the Human Rights Act (while making it clear that the Bill is compatible with the European Convention on Human Rights).” So I wrote recently on this site.
This morning, it appears that the Home Secretary will announce proposals along these lines today: we await the detail. Some will denounce the plan as cruel, others as useless – and Labour will doubtless haver between the two, fearful of alienating its pro-immigration backbenchers, but anxious of angering migration-resistant voters, especially in northern and Midlands marginals.
You may ask what will be in the Government’s new Bill that wasn’t in its last one – the Nationality and Asylum Bill introduced by Priti Patel. One answer is that Ministers are constantly seeking to second-guess the courts, filling in legal gaps that lawyers discover in immigration legislation, rather in the manner of accountants finding loopholes in tax laws. I hope that Ekins is right and that leaving the Court’s jurisdiction, and perhaps even the Refugee Convention, doesn’t turn out to be necessary.
This is where the Rwanda scheme comes into play. Its critics have argued that even if it isn’t struck down by the courts, it won’t work, because Rwanda can’t take the number of arrivals that the Government wants to send. Its supporters reply that Rwanda will scale the numbers up once the plan has been proved to be workable.
And add that a back-and-forth about figures misses the point, which is that it’s the deterrent effect of the scheme that will count. But what if the number of those who arrive by small boat – and who under the Government’s plan will neither be able to work nor claim benefits – is still greater than that which Rwanda can take? Effectively, they will be detainees. MPs will scarcely queue up to have them lodged in their constituencies, and they may find legal avenues for appeal.
Having made a political success of moving Section 35 of the Scotland Act, which helped to see off Nicola Sturgeon, and agreed his Windsor Framework, which will ease the workings of the Northern Ireland Protocol, the Prime Minister is moving quickly, turning to the thorniest of his five priorities.
Downing Street has been divided over how roughly to rub up new legislation against our international obligations. Victoria Prentis, the Attorney General, is their guardian within the system. It is her function to press for as little friction as possible, just as it is Braverman’s to push for the most necessary, which she’s certainly been doing. Sunak seems to have come round to the Home Office’s point of view on how to frame the legislation.
In the autumn of 2019, Boris Johnson failed to take Britain out of the EU by October 31, as he had promised. But voters gave him the benefit of the doubt: they believed that he really wanted Brexit. Much will turn not just on whether those planes take off for Rwanda, but in whether voters decide the Prime Minister really wants them to.