Small boats crisis: is the government’s migrant policy legal - or has Rishi Sunak breached international law?

Prime Minister Rishi Sunak and Home Secretary Suella Braverman on Tuesday (7 March) formally unveiled their new plan to tackle the small boats crisis - and it has already proved highly controversial.

Under the proposed ‘Illegal Migration Bill’, migrants deemed to have arrived in the UK ‘illegally’ or through ‘irregular routes’ would be prevented from claiming asylum. Instead, they would be immediately detained without bail or judicial review, and subsequently removed from the country, for example via deportation to Rwanda.

Crucially, these asylum seekers would also be banned from ever returning to the UK - and blocked from seeking citizenship. Sunak has described this as “fair for those at home” and “for those who have a legitimate claim to asylum”, adding: “My policy is very simple. It is this country, and your government, who should decide who comes here.”

But there has already been a significant backlash to the proposals. EU Commissioner Ylva Johansson said she personally told Braverman, prior to the announcement, that she believes her asylum plan “violates” international law.

Meanwhile, many refugee and human rights charities have said the new legislation will breach the European Convention on Human Rights, as well as the UN’s 1951 Refugee Convention. The UK is a long-standing signatory of both of these, which means it is legally obliged to follow its rules and guidance.

‘An asylum ban’

Speaking on the Illegal Migration Bill, the United Nations High Commissioner for Refugees (UNHCR) has said the proposal amounts to an effective “asylum ban” - which would prevent people fleeing war and persecution from seeking refuge. It explained: “The effect of the bill would be to deny protection to many asylum seekers in need of safety and protection, and even deny them the opportunity to put forward their case.”

This is because under the plans, a legal duty would be imposed on the Home Secretary to remove “as soon as reasonably practicable” anyone who arrives on a small boat - and to do so without hearing their asylum claim. The so-called “duty to remove” would take legal precedence over an individual’s right to claim asylum, although there would be exemptions for under-18s as well as those with serious medical conditions.

The UNHCR argued this would be “a clear breach of the Refugee Convention” and “would undermine a long-standing, humanitarian tradition of which the British people are rightly proud.” The agency went on to urge MPs to vote against the “profoundly” concerning plan, and instead “pursue more humane and practical policy solutions.”

‘Push the boundaries’

Interestingly, the government has already admitted it is aware that its Illegal Migration Bill may break the law. Speaking at a press conference, the Prime Minister said he was “up for the fight” that is predicted to take place over the matter in the courts.

Braverman meanwhile has said that the bill would push “the boundaries of international law” without breaking it, but also warned in a letter to MPs that her plan may not comply with the Human Rights Act. She wrote: “This does not mean that the provisions in the bill are incompatible with the convention rights, only that there is a more than 50 per cent chance that they may not be.”

This is known as a “Section 19b” statement, which is a formal alert that the proposals could fail before the courts. There have only ever been a handful of these warnings - and they are only added when the government’s top internal lawyers have warned ministers that an idea could be legally unworkable.

In spite of this, Sunak said there was “absolutely nothing improper or unprecedented” about pursuing laws that might violate the Human Rights Act, and that he and his government “believe we are acting in compliance with international law”.

He and Braverman also claimed that the new policy will stop migrants arriving on small boats from “jumping the queue” and violating “fairness” - criticising those who have travelled through other countries in Europe to get to the UK, and saying they should only arrive through government recognised routes.

But under the Refugee Convention, there is an explicit recognition that refugees may be compelled to enter a country of asylum “irregularly” - and there is no requirement that refugees claim asylum in the first country they reach. Charities have also argued that official resettlement programmes remain limited, which is what pushes refugees to use ‘irregular’ or ‘il

What will happen?

This is not the first time this government has faced legal challenges over its asylum seeker policies. Previously, its controversial plan to deport anyone considered to have arrived in the UK ‘illegally’ to Rwanda was stalled following an intervention by the European Court of Human Rights, who grounded the first flight to the country. No flights have departed since.

A legal challenge was then heard against the scheme at the High Court, and initially, the ruling said the plan was legal. But activists have now been given another chance to fight against the controversial policy - with the Court of Appeal set to reconsider the decision.

So this new plan will likely face similar hurdles - and the admittance from Braverman that “there is a more than 50 per cent chance” that the bill is incompatible with the Human Rights Act is a significant one. What is clear from experts and charities is that the proposal does not comply with the Refugee Convention, namely because it:

• allows asylum seekers to be deported without their claim being heard
• does not recognise that refugees may be compelled to enter a country “irregularly”

So if the government proceeds, it will be breaching its obligation to this convention. The question that remains then is whether Sunak and Braverman can find a legal loophole around this - but there will likely be a lot of challenges, both legal and from opposition parties, charities, and activists, before this point.