Yuan Yi Zhu is a Senior Research Fellow at Policy Exchange and Assistant Professor of International Relations and International Law at Leiden University in the Netherlands.
For many years, a cat-and-mouse game has been played out around illegal immigration to the United Kingdom. No sooner was one loophole in Britain’s labyrinthine immigration laws plugged would lawyers discover another one through which they could save their clients from deportation.
This has naturally led to a one-way ratchet whereby more and more drastic legislation was introduced to counter increasingly creative lawyering, of which the newly-introduced Illegal Migration Bill is but the latest step.
Will this be enough to end the chase? Already, legal commentariat is discussing potential ways of bypassing the new Bill. A popular talking point has been the revival of common law remedies in this area, as opposed to the more fashionable human rights legislation. Some lawyers are already speculating about using habeas corpus to get around it, and more is sure to come.
But the Bill, many of whose provisions are based on a Policy Exchange paper by Professor Richard Ekins and Sir Stephen Laws, will make it harder both for lawyers to challenge the new removals regime and for future governments to undo it by ministerial fiat.
This is because the Bill would impose a legal duty, in primary legislation instead of secondary legislation, on the Home Secretary to remove illegal immigrants (although the minister may make exceptions to the duty by secondary legislation). As such, as a duty enshrined in primary legislation, it will be immune from ordinary judicial review by the courts and can normally only be undone by another Act of Parliament, thus raising the political costs of a course change.
Yet, despite the Government’s boisterous tone on the one side and the strident condemnations by the usual suspects on the other, this Bill is in some ways curiously half-hearted.
For instance, although it disapplies one key provision of the Human Rights Act (meaning that it will operate notwithstanding its existence), the Bill does not disapply others, as recommended by Richard Ekins and Sir Stephen Laws.
Notably, these include section 4, which allows courts to issue declarations that a statutory provision is incompatible with the European Convention on Human Rights, and section 10, which allows ministers to take remedial action in response to a section 4 declaration of incompatibility through secondary legislation.
This means that, if enacted, not only will a UK court still be able to find portions of the new legislation to be incompatible with Convention rights, but that a future Government will be able to amend the offending parts out of existence without the need for an Act of Parliament.
And the all-important section 6, which makes it unlawful for public authorities to act contrary to the Convention, remains untouched, so that most potential litigation related to the new legislation will continue unabated.
Politically, it is hard to understand the logic of this approach. Are there really many swing voters in the country who would be scandalized by the disapplication of section 4 of the HRA but who are fine with the disapplication of section 3?
The Government has already incurred significant political cost disapplying portions of the HRA that it might as well court-proof the Bill further.
And even if UK courts do not find the legislation to be incompatible with the European Convention (although protracted litigation is absolutely guaranteed either way), the European Court of Human Rights in Strasbourg can always rule against the UK.
It would of course be one thing if it did so in a formal, reasoned judgment; but last year the Rwanda Plan was blocked by a single anonymous ECHR judge without argument through the promulgation of so-called ‘interim measures’.
To mitigate this possibility, clause 49 of the Bill would allow ministers (if they have the political willpower to do so) to limit the reach of any interim measures made by the Strasbourg court to stop removals of migrants to third countries; but as the limits are secondary legislation they could be judicially reviewed in British courts and struck down. And much will hinge on Parliamentary support for such a confrontational step, which is by no means guaranteed.
We are left with a Bill which goes far too far for many people and not nearly far enough for many others, a Bill with some unusually robust provisions but with others which may well be used to undermine the whole of the legislation.
The Government’s stance that it wants the United Kingdom to remain within the European Convention no doubt had a role to play in creating and heightening these internal contradictions. Ministers may hope that the implied threat of Britain leaving the ECHR unless the new legislation is left intact will dissuade the ECHR from intervention; but there is no guarantee that this will work either.
They will also need to decide whether they want to make use of their new powers under clause 49 to limit the ECtHR’s ability to issue interim measures stopping deportations, which has so far left the Rwanda Plan in tatters.
But if none of this works, having made the unequivocal promise to stop the boats, the Government will have to accept that compliance with the ECHR as currently interpreted by Strasbourg is not compatible with its goal of ending illegal entry to the UK. Unless the Bill is strengthened further, the stage thus seems set for a showdown over this country’s continued membership of the ECHR.