An illegal route for the Nationality and Borders Bill

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The Home Office has some proposed laws on immigration and asylum – it just doesn’t have a legal system it should try to put them in. That is the legal consensus around key parts of the Nationality and Borders Bill.

Eduardo-Reyes-2019

Eduardo Reyes

The United Nations’ refugee agency, UNHCR, has a list of clauses in the bill that it says are incompatible with the Refugee Convention.

UNHCR particularly takes aim at what presents as home secretary Priti Patel’s most treasured element – the distinction drawn between refugees who arrive via ‘legal’ and ‘illegal’ routes. This distinction – think of it as Patel’s ‘precious 1’ – would accord fewer rights to any refugee arriving via an ‘illegal’ route. The impact on the position of trafficked persons, who are disproportionately women and children, is highlighted.

In a 40 page counsel’s opinion released yesterday, for the Good Law Project, Raza Hussein QC, Eleanor Mitchell and Jason Pobjoy take aim at another clause the home secretary holds dear – Clause 9 (‘precious 2’), which concerns deprivation of citizenship.

Deprivation is not new in law, but the bill would make it easier, and achievable with fewer safeguards. ‘Clause 9, as presently framed, confers upon the Secretary of State an exorbitant, ill-defined and unconstitutional power to make a deprivation order without notice,’ then opinion states.

Parliament’s cross party joint committee on human rights has its own report on the bill, and rather goes to town on the bill’s key provisions. The focus on ‘illegal routes’, impact of children, the use of invasive age assessments (where age is disputed), and deprivation of citizenship all get a kicking. The legal changes proposed are ‘inconsistent’ with ‘rights and obligations’ established in the Refugee Convention, the European Convention on Human Rights, the Human Rights Act and the UN Convention on the Rights of the Child.

The government’s own lawyers have warned the home secretary that she would likely lose a case on the lawfulness of forcing migrant boats in the English channel to turn back to France.

In fact, you’d struggle to organise a mooting competition on the Nationality and Borders Bill, because there is a dearth of lawyers with their hands up to talk for the government side.

The only support for the bill communicated to the Gazette has come from a Home Office press officer.

This seems to reflect the findings of think tank the Institute for Government’s own research based on interviews with government lawyers, civil servants, former ministers and special advisers.

As its report on judicial review notes: ‘More than one interviewee told us that with certain Home Office decisions, politicians would find it more politically palatable to be forced to abandon policy or action by a court than to abandon it themselves.’

I’m sure my own liberal internationalist perspective on refugee and asylum law is plain to see.

But putting that aside, I can observe that the frustrations the government will face in meeting its promises here if the bill becomes law as currently drafted will have two origins.

First, there is this government’s aversion to working with or within international bodies to find solutions to the dysfunction of an international system that struggles to meet its duty to refugees in a dangerous world. Such unilateralism, sat beside our reluctance to recuse ourselves from a global role (and the commitments that come with that), ends in stasis.

Secondly, there is the linked point that we are a common law country, meaning we have ‘judge-made law’. This inevitably means that our judges can and will look to other jurisdictions and authorities in working out the balance and interaction of rights and laws placed in competition and contradiction before them. They do this in the absence of precedents here.

When UK unilateralism, and lack of engagement, leaves the international laws and ‘architecture’ unchanged, there is a risk that the government will lose in court.