Without reform of the Human Rights Act, the migrant crisis will continue

The small boats will not stop coming until it is clear that one cannot enter and remain in the UK by crossing the Channel

Our law is a main cause of the crisis in the Channel. It makes preventing further crossings effectively impossible. Attempting to resolve the crisis without changing the law is likely to prove futile. The Nationality and Borders Bill now before Parliament will not do what is needed.

The Refugee Convention 1951 is not the central problem. It obliges states to protect refugees in their territory, which requires our authorities to consider whether those within the UK who claim asylum are refugees under the meaning of the convention. That is, are they fleeing persecution? Not everyone fleeing hard times at home is a refugee in this strict legal sense.

The convention does not require the UK, or any other member state, to permit asylum seekers to enter its territory. It carefully preserves the state’s right to deny entry to asylum seekers and even to expel refugees from its territory if they pose a danger. In any case, no refugee has a legal right to reside in a safe country of his choice. The UK would be entirely free, so far as the Refugee Convention is concerned, to refuse entry from France.

The European Convention on Human Rights (ECHR) is a much more serious problem, not because of what the UK and other states actually agreed in 1950, but because of how the European Court of Human Rights has remade it over time. As John Finnis QC (Hon) and Simon Murray explain in a recent Policy Exchange paper, the Strasbourg court has deployed the idea that the ECHR is a “living instrument” to invent a new European law of immigration, frustrating states from effective border control or from removing unlawful migrants, including failed asylum seekers.

The small boats will not stop coming until it is clear that one cannot enter and remain in the UK by crossing the Channel. If small boats were intercepted at sea and returned to France before they entered the UK, the people smugglers’ business model would collapse. But returning boats, and their passengers, to French waters or French soil requires French agreement. The moral case for such an agreement is obvious, but, alas, that does not make it likely.

What about simply denying entry to UK waters? The UK would be within its rights, in international law, to do exactly this. Mugged by reality, the Strasbourg court last year upheld the lawfulness of Spanish “pushback” operations in conditions of mass entry (across land borders), conditions in which the UK now surely finds itself (though with maritime borders). In any case, nothing in the ECHR, properly interpreted, prevents the UK, or any other member state, denying entry at the border of its land territory to a person who seeks to enter. The UK should categorically maintain that it retains this legal right.

However, turning boats around in the Channel is not straightforward. It is likely that they would be scuttled within sight of British craft, forcing a rescue operation to take place. And the risks of fatal accidents in this exceptionally busy shipping strait are all too obvious. In addition, the UK does not enjoy Australia’s relative advantage in terms of distance from neighbouring countries: small boats turned back into French waters might well turn around and try again.

The solution is legislation specifying that anyone crossing the Channel without permission to enter the UK will not be allowed to remain in the country – or even to enter the UK and there argue in court for a right to remain. Without an agreement with the French, this means interception at sea and processing of asylum claims at a location offshore, seeking agreements with some countries to accept genuine refugees and with other countries to accept return of failed asylum seekers.

Without legislative change, each and every step in such an operation would be challenged in the courts. The Human Rights Act 1998 would be deployed to prevent removal of many of those intercepted, or rescued, at sea to an offshore location and to require some to be admitted into the UK, whether to join family or, in line with recent decisions of the Strasbourg court, to prevent removal to a location that lacks first-world medical care or has a high crime rate.

Intercepting boats and processing asylum claims offshore promises to wreck the people traffickers’ business model and end the crisis, saving lives and restoring the UK’s borders.

But unless legislation addresses the Human Rights Act, this solution will rapidly become mired in litigation and is highly unlikely to succeed. The UK will also have to be willing to face down the Strasbourg court. Until then, the traffickers will continue to ply their deadly trade.

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