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‘Draconian’ asylum bill pushes into new legal waters

Experts point to reputational ramifications for country of action seen as unprecedented

WILLIAM WALLIS · Dec 12, 2023

As Conservative MPs battled over Rishi Sunak’s Rwanda bill ahead of a vote today, legal and other experts described the legislation as the most drastic response to immigration in decades.

The prime minister’s efforts to restrict appeals by asylum seekers against being sent to Rwanda had echoes of the 1968 Labour government’s overnight decision to prevent Kenyan Asians entering the UK, according to Tim Bale, professor of politics at Queen Mary University of London.

Even then the legal and reputational ramifications for Britain were nowhere near as great. “It is very difficult . . . to think of another government that has taken this kind of draconian action before,” he said.

The legislation is a response to the Supreme Court’s ruling last month that the Rwanda policy was unlawful because it would put asylum seekers at risk of being sent to their home countries without their claims being assessed.

The bill deems Rwanda to be “safe” and limits the recourse of asylum seekers to appeal against removal under domestic and international human rights law, apart from in exceptional circumstances which, Sunak argued, would make successful claims “vanishingly rare”.

The Home Office said the bill precluded “almost all grounds” for individuals to challenge being sent to Rwanda.

But a summary of the government’s legal advice said a blanket prohibition on challenges would “mean that there would be no respectable argument that the bill is compatible with international law”.

Nevertheless, rightwing factions in the Conservative party such as the European Research Group of MPs were yesterday pushing the prime minister to adopt even tougher measures, criticising avenues for appeal that remained.

Daniel Mulhall, Ireland’s ambassador to the UK during the Brexit referendum in 2016, said the debate within the Tory party had, at times, been alarming. He noted, in particular, comments by Robert Jenrick last week after he resigned as immigration minister.

Jenrick said he would “always put the vital national interests of this country and views and concerns of the British public above contested notions of international law”.

Mulhall said it was a “shock” to see such a senior British figure talking about the whole notion of international and human rights laws as if they were “gilded irrelevancies”.

Four senior barristers, including the former Tory attorney-general Sir Geoffrey Cox, defended Sunak’s bill in an open letter yesterday, arguing it goes “as far as it can within the law to oust legal challenges to removal”.

To go further would not just put the policy at risk of unravelling, it could provoke a constitutional showdown with the courts, they warned.

Even as it stands, the bill has caused consternation among some legal experts.

Nick Barber, professor of constitutional law at Trinity College Oxford, called the bill “an outrageous abuse of parliament’s constitutional powers”.

“It is hard not to think [the government] want to send people to a place where they aren’t safe to deter them from crossing the Channel,” he said, referring to the bill’s statement that Rwanda is “safe”.

While it was not uncommon to introduce clauses in legislation explicitly stating how something should be treated, the Rwanda bill also dealt with a factual issue on which the Supreme Court recently found otherwise, said Mark Elliott, chair of the law faculty at Cambridge university.

This was “an affront to the separation of powers”, he said, adding that there was a significant chance that lawyers would litigate against the bill on those grounds.

But a constitutional showdown could leave the judiciary worse off, he said.

“There is a real risk in the end that judges would have their wings clipped by parliament and the judiciary would be weakened,” he added.