The United Nations High Commissioner for Refugees (UNHCR) estimated last year that the number of people forcibly displaced worldwide had exceeded 100 million for the first time. The UNHCR cited the figure because it’s inextricably linked to refugee status.
This isn’t to say that all 100 million are on their way to Britain (far from from it), but the figure is an introduction to the scale of displacement worldwide. To it one should add other migration – legal and illegal. That net migration reached a record high in this country last year is undisputed.
Now pan the camera back again, and consider illegal or irregular crossings into Europe. Figures are hard to come by, and should be read with care, but the EU’s Border and Coast Guard Agency (Frontex) records 330,000 such crossings last year – a threefold rise since 2010. There will be more unrecorded.
The composite picture is one of mass movement into Europe, with its falling birth rate, from the Middle East and North Africa, with their rising ones. The migrants are rational actors: whether refugees are not, they aim to move from less prosperous countries into more prosperous ones, with their greater freedoms and rights – aided by globalisation.
The entry of migrants into Britain by small boat is best seen against this awesome backdrop, over time rather than as a snaphot, and with an eye for where it’s likely to go next if the Government fails to “stop the boats” – and even if it succeeds. According to Frontex, irregular or illegal border crossings into the UK came in at 27,260 in the first six months of this year.
That’s higher than those recorded into the western and eastern Mediterranean and Europe’s eastern land border, but lower than the western Balkan route (52,232) and the central Mediterranean route (52,232). Now turn from trends to politics – as Europe’s settled voters react to the newcomers’ arrival amidst demographic decline and lower growth.
Populist politics advances and retreats, but few would deny a net growth since 2010 or so. I cite our two biggest neighbours almost at random. In France, Marine Le Pen came second in last year’s presidential election, and is set to stand again in 2027. In Germany, the Christian Democrats may face the option of a coalition with the AfD after the next federal elections.
If the Government wins its case at the Supreme Court, flights to Rwanda begin to take off, and appeals to the European Court of Human Rights (ECtHR) aren’t successful, expect the current noise about leaving the European Convention of Human Rights (ECHR) to quieten – for a while.
Let’s assume for the moment that this is so, and return to my composite picture of migration pressure and voter resistance. The Refugee Convention and the ECHR are twin pillars of our current migration architecture – not the only ones, to be sure, but so nonetheless.
Along with 149 other countries, we’re signatories to the Convention, which offers asylum to those who have a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion”. And with the other 46 members of the Council of Europe, we’re signed up to the ECHR, as interpreted by the ECtHR.
Both have developed in ways that their founders cannot have anticipated. Those who drew up the Convention didn’t forsee the collapse of the Soviet Union, the scale of international travel, the effects of climate change, the changing demographic picture, or new notions of what human rights are.
Gay rights, for example, were unknown in 1951, at least as now understood. British signatories to the Convention might have been surprised, were they then crammed into a Tardis and flow forward to 2010, at our country acquiring a Supreme Court. But they would surely have been even more so by it ruling that gay asylum seekers are not to be deported from the UK.
And those who signed us up to the ECHR would have been even more so had they foreseen the cases of, say, the Malawian rapist who won the right to remain because his deportation would breach the Article Eight rights of his sick wife, or the Bangladeshi sex attacker who successfully argued his right to a family life in the UK because he had not offended for 13 years.
That neither of these cases came to the ECtHR is beside the point – which is that British courts ruled on both of them under the terms of Tony Blair’s Human Rights Act, which wrote the European Convention rights into UK law. Lord Denning once compared EU to an incoming tide which “flows into the estuaries and up the rivers. It cannot be held back.”
The same might be said of the ECHR, and its interaction with our courts – though the ECtHR is topical, remember, because, by means of an interim judgement, it ruled against aspects of the Rwanda scheme last year. So where is this story of migration into Europe, politics and our legal framework going, especially here on Britain?
Other European countries may well take the route of least resistance and, as most of them do now, observe the ECtHR’s judgements less scrupulously than we do (and perhaps the requirements of the Refugee Convention too). But this is not the British way.
We are attached to the rule of law – to the point of gold-plating it during our period as an EU member state. Derogation from key articles of the ECHR appears to be impossible even if desirable. But expect pressure to leave the jurisdiction of the ECtHR, if not the ECHR itself, to grow here as time goes by.
Expect those opposed to one or both to step up their case – arguing, as Dominic Cummings does, that the ECHR makes it impossible to control illegal immigration and carry out the proper surveillance of terror suspects; empowers them to sue, and prevents the release of the worst criminals.
Exponents of this case will argue that the worst effect of the ECHR / ECtHR is not what either do, but what they might do – at least when civil servants and other make their case to Ministers. “Don’t do this, Minister: European Court.” “Don’t do that Minister, judicial review.” “Don’t do the other Minister – lawsuit.” The result is paralysed government, raging citizens.
Whether or not Rishi Sunak commits the Conservatives to leaving the ECHR / ECtHR in their next manifesto is less relevant – given the Tories’ 20 point deficit in Politico’s poll of polls – than the longer-term trend. If he doesn’t do so and somehow wins the next election, expect the next Leader of the Opposition to take up the cause.
Perhaps the policy will be Nick Timothy’s plan to “repeal the Human Rights Act, leave the ECHR…and legislate to replace it in British law so that Parliament is free, when it comes to policy, to determine the interpretation of those rights, and the balance between them, and British judges…are responsible for interpreting those rights in individual cases”.
Maybe so. Maybe not. But either way, debate in Britain, and elsewhere in Europe, about the ECHR, the Refugee Convention, the ECtHR and the framework of which all are part is in its infancy. It’s the long-term trend that counts – against which last week’s short-term, grid-driven, mishap-plagued news is ephemera.