The Prime Minister has announced that he will introduce emergency legislation to send those who come to our country illegally to Rwanda. I welcome his decision, as do, I’m sure, the clear majority of the British public.
The immediate issue before us is whether the Government can send illegal migrants to a particular country in Africa.
The more fundamental question is where does ultimate authority in the United Kingdom sit? Is it with the British people and their elected representatives in Parliament? Or is it with the vague, shifting, and unaccountable concept of “international law”?
There is no reason to criticise the judges. They have merely interpreted the law of the land. The fault lies with the politicians who have failed to introduce legislation that would guarantee delivery of our Rwanda partnership.
Now is not the time to waste energy on a post-mortem of how we got here. What matters for those of us who believe in effective immigration control is how to move forward. This requires honesty.
There must be an end to spin
Above all, it demands of the Government an end to self-deception and spin. There must be no more magical thinking. Tinkering with a failed plan will not stop the boats.
Amending our agreement with Rwanda and converting it into a treaty, even with explicit obligations on non-refoulement, will not solve the fundamental issue.
We lost in the Supreme Court because the judges determined that Rwanda cannot be trusted to fulfil the commitments we asked of them on non-refoulement, not because those promises were embodied in one type of legal instrument, a memorandum, rather than another, a treaty.
To try and deliver flights to Rwanda under any new treaty would still require going back through the courts, a process that would likely take at least another year.
That process could culminate in yet another defeat, on new grounds, or on similar grounds to Wednesday: principally, that judges can’t be certain Rwanda will abide by the terms of any new treaty.
Even if we won in the domestic court, the saga would simply relocate to Strasbourg where the European court would take its time deciding if it liked our laws.
That is why the plan outlined by the PM will not yield flights to Rwanda before an election if Plan B is simply a tweaked version of the failed Plan A.
For emergency legislation to achieve what the PM says he wants, Parliament needs to amend the Illegal Migration Act so that it meets these five tests:
The Bill must address the Supreme Court’s concerns regarding Rwanda
Parliament is entitled to assert that Rwanda is safe without making any changes to our Rwanda partnership.
However, for substantive and presentational reasons, it would be preferable to amend that agreement to address issues identified by the judges. This could include embedding UK observers and independent reviewers of asylum decisions.
It is less important whether these commitments are embodied in an amended memorandum or a new treaty.
What is crucial is that they are practical steps to improve Rwanda’s asylum system. On the basis of these new commitments, Rwanda’s safety could be credibly confirmed on the face of the Bill.
The Bill must enable flights before the next general election
Legislation must therefore circumvent the lengthy process of further domestic litigation, to ensure that flights can take off as soon as the new Bill becomes law. To do this, the Bill must exclude all avenues of legal challenge. The entirety of the Human Rights Act and European Convention on Human Rights, and other relevant international obligations, or legislation, including the Refugee Convention, must be disapplied by way of clear “notwithstanding” clauses.
Judicial Review, all common law challenges, and all injunctive relief, including the suspensive challenges available under the Illegal Migration Act must be expressly excluded. Individuals would, however, be given the chance to demonstrate that they had entered the country legally, were under 18, or were medically unfit to fly – but Home Office decisions on these claims could not be challenged in court.
Swift removal must mean swift removal
Those arriving illegally must be removed in a matter of days rather than months as under the Illegal Migration Act. This means amending the Act to ensure that removals to Rwanda are mandated under the duty to remove, with strict time limits. This will streamline the Home Office process as much as possible, so that the only Home Office decision is to determine whether an individual falls within the scheme or not.
Those arriving here illegally must be detained
Legal challenges to detention must be excluded to avoid burdening the courts, making it clear that detention is mandated until removal.
This must be treated as an emergency
The Bill should be introduced by Christmas recess and Parliament should be recalled to sit and debate it over the holiday period.
There is no longer any chance of stopping the boats within the current legal framework.
Having committed to emergency legislation, the Prime Minister must now give Parliamentarians a clear choice: to either properly control illegal migration, or explain to the British people why they are powerless under international law and must simply accept ever greater numbers of illegal arrivals on these shores.