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It’s a common belief that Britain has a tough time sending illegal immigrants back home while other European countries do it effortlessly. Kemi Badenoch insists that countries in the European Convention on Human Rights (ECHR) are managing to deport up to 70% of illegal migrants. Badenoch believes that leaving the ECHR isn’t a ‘silver bullet’ and argues that the real issues lie in a lack of political will among politicians and, to a lesser extent, within officialdom. There’s some truth in this. The problem is, while the ECHR and Human Rights Act (and other legislation), which embeds the former in UK law, remain in place, whatever other countries may do, our politicians and courts will always shy away from going against the Convention.
On the Continent, things are, to a certain extent, different: France, Germany, and Sweden – some of the more successful deporters who are also signatories of the ECHR – aren’t even managing to return half of their illegal immigrants. Britain isn’t alone in finding it nigh on impossible to detain and remove quickly those who arrive illegally. Every European country faces the same issues, all bound by the same legal shackles. Having said that, there is plenty of anecdotal evidence that there are countries such as Greece that simply turn back boat-loads of migrants trying to enter the country from Turkey. While Poland has said it intends to suspend the right of new illegal arrivals to claim asylum. They know full well that this will go down badly in Brussels, but they don’t care, they’ve had enough. It seems, where there’s a will there’s a way. What chance ex-Director of Public Prosecutions, Sir Keir Starmer, having the courage or will of Donald Tusk, his Polish counterpart, to do the same?
It won’t of course be plain sailing for Poland or any other state taking a similar path. Take Italy, for example, only last week, Italian judges ruled that the first 16 (Bangladeshi and Egyptian) migrants sent for processing in Albania had to be returned to Italy because their countries of origin were deemed unsafe (remember that one?) and therefore they could not be returned there in the event of their applications being rejected. Prime Minister Meloni’s government is fighting back with legislation that will make clear it is for the legislature and ministers to decide on whether a country is safe, not judges.
Whatever happens in Italy, Poland or other European country, more and more states are now concluding that international treaties, like the European Convention of Human Rights, designed to deal with the problems Europe faced in the aftermath of WW II, are no longer fit for purpose. Moreover, such treaties were never intended to become immigration routes. Indeed, the 1951 Refugee Convention made clear it was not a vehicle for immigration. Together with its 1968 protocol and the ECHR, the Conventions have now not only been turned into just that but have also thrown open the borders by making it almost impossible for countries to detain and remove those who violate their borders.
There were good reasons for the inclusion of the principle of “non-refoulement’ — ensuring that people wouldn’t be sent back to face inhumane treatment in the Soviet Gulags. Bangladesh and Egypt may be tough places for many to live but Gulag-riddled they are not.
The glaring problem we now face is that of left-leaning political elites, activists, lawyers and judges using the ECHR to block the removal of illegal economic migrants, including those who pass through safe countries to reach the UK and the rest of Europe.
Robert Jenrick has called the ECHR a “criminals’ charter”. He’s right. It has failed to protect the freedoms of law-abiding British citizens while effectively safeguarding the rights of tens of thousands of migrants making their way here illegally and illegal overstayers.
The fact that the ECHR is now deeply woven into British law matters because, while ministers can technically ignore rulings from international courts due to parliamentary sovereignty, they cannot simply disregard domestic law. To do so would put them in contempt of court. The HRA has been particularly problematic. Introduced by Tony Blair in 1998, the HRA had two main goals: (a) to show the world that the UK respected human rights and (b) to smooth things over with the European Court of Human Rights (ECtHR) in Strasbourg by bringing those rights into British law. Whatever the motivation for the enactment of the legislation, in practice it lowered the bar for proving the likelihood of someone facing inhumane treatment if returned to their country of origin to barely above ground-level. Hence the flood of legal cases and industrial scale human rights litigation.
While it might be tempting to think that denouncing the ECHR is the priority, repealing the HRA is arguably even more critical. Yet for any real change to happen, we at Migration Watch believe that rolling back both is absolutely essential.
The fact is, we don’t need the ECHR or HRA to protect rights (as Lord Sumption has pointed out). Many of the rights it lists were part of British law long before the convention even existed. We can guarantee rights through our own laws, shaped by the democratic will of the British people over generations. Ironically, our own judges sometimes enforce the ECHR more strictly than the European courts do!
So, what to do? Get rid of the HRA entirely, make necessary changes to related legislation, and return to Britain’s traditional approach – with Parliament setting rights and the courts supporting that mandate, not overruling it.
This is a preview of Migration Watch’s free weekly newsletter. Please consider signing up to the newsletter directly, you can do so here and will receive an email copy of the newsletter every week as soon as it is released.