The British government has set the stage for a new legal battle over plans to prevent the arrival of undocumented migrants across the Channel, after admitting on Tuesday that new laws could breach human rights laws.
Introducing the illegal migration bill to parliament, Suella Braverman defended the government’s strategy to stop small boat crossings, which prime minister Rishi Sunak named in January as one of the five “people’s priorities”.
The home secretary said he was “confident” the bill was “compliant with the UK’s international obligations”. But he added that the “robust and novel” approach meant “we cannot make a definitive compatibility claim under section 19 1b of the Human Rights Act”.
In a letter to Tory MPs, Braverman also admitted there was “more than a 50 per cent chance” that the legislation’s provisions were incompatible with the European Convention on Human Rights.
By 2022, a record 45,000 people are expected to arrive in Britain on small boats across the Channel, and with the government spending more than £6 million a day on housing asylum seekers in hotels, Sunak is under pressure from his own party to come up with a solution.
At a press conference on Tuesday, Sunak said he was “ready to fight” if the bill was challenged in court. “We are confident we will win,” he said. “We believe that we are acting in accordance with our international legal obligations.”
He also argued that there was no need to build significant new detention facilities, arguing that people would be removed too quickly. “The idea is not to detain people for long periods of time,” Sunak said.
Immigration lawyers and NGOs have warned that the government’s strategy is a de facto withdrawal from the 1951 UN convention on refugees, which was introduced after many countries rejected Jewish refugees during the second world war.
The UN refugee agency on Tuesday said the proposed law would deny protections to many asylum seekers and prevent them from doing so.
“This would be a clear breach of the Refugee Convention and would undermine a long-standing humanitarian tradition, of which the British people are proud,” UNHCR said.
The new law bans anyone deemed to have entered the UK illegally from claiming asylum and prohibits them from formally returning. It also makes it a “legal duty” for the home secretary to remove the person to their country of origin or to a “safe” third country.
In other provisions it strengthens the powers of detention, so that people held in this situation can request bail from the court only after 28 days.
Braverman said the government would open safer and legal routes for asylum seekers to reach the UK once the small boat crisis is resolved.
The bill has been criticized by opposition MPs, charities and migration experts as “unworkable”, in part because Britain has no workable agreement to return refugees to “safe” third countries.
Plans to deport some asylum seekers to Rwanda have been stalled by ongoing legal challenges, including at the ECHR, which last year blocked the first flight to Kigali carrying detainees from taking off.
If there is no other agreement, this means that tens of thousands of newcomers in practice could be detained.
Dame Diana Johnson, chair of the Commons home affairs select committee, said: “They have no detention facilities – 3,000 have arrived this year in small boats and that number will grow. Where are they going? And the cost of detaining people will bulky.
He predicted that the new policy would end up in court, preventing the government from implementing its plans before the next election.
Some Tory MPs want Britain to withdraw from the ECHR altogether if the Strasbourg court continues to prevent the UK from carrying out deportations – a sentiment echoed on Tuesday by Professor Richard Ekins, head of the Judiciary Project on Policy Exchange think-tank. .
“The key unanswered question is whether the bill goes far enough to defeat a legal challenge to its repeal, and in particular what will happen if the ECHR intervenes as it did last June,” he said. “If the policy is to be effective… the new bill must require the removal to continue even if the Strasbourg Court claims to rule otherwise.
There was no immediate sign of a reaction from the centrist Conservatives, who had previously warned of a “significant backlash”, if the government jeopardized the UK’s membership of the ECHR.
One former Cabinet minister from the moderate wing of the party confirmed that Sunak had breakfast with some MPs on Tuesday and had allayed their concerns.
Additional reporting by George Parker