The anti-European agenda behind Britain's proposed immigration law

Rishi Sunak's draconian measures to expel cross-channel refugees plays to the deeper ambitions of his party's English nationalists

The cheerleaders for the British government’s plan to criminalise undocumented asylum seekers have three goals. The ambitions include only tangentially Rishi Sunak’s stated purpose of halting soon the flow of asylum seekers crossing the channel in small boats. 

The prime minister’s recent deal with Brussels on post-Brexit trading arrangements for Northern Ireland was widely heralded as the mark of a new pragmatism in Britain’s relationship with the European Union. His summit in Paris with Emmanuel Macron was likewise framed by Downing Street as evidence of a thaw. The optimism was premature. The immigration legislation sees Sunak marching his party back into the comfort zone of little England populism 

A clue to the deeper purpose of the proposed law lies in the government’s admission that it is likely to fall foul of Britain’s international human rights obligations. There is a more than 50 percent chance, the bill itself acknowledges, that its summary treatment of asylum seekers will be found to breach the European Convention on Human Rights (ECHR). No matter that Britain was a principal author of this postwar initiative to entrench across Europe a basic framework of civilised values and norms.

At very least, the legal doubts foreshadow a protracted battle in the courts (assuming ministers can get the legislation through the House of Lords). Even if the government were to surprise itself and persuade the judges, it is evident that the measures will not enter into force any time soon. They are thus irrelevant to Sunak’s pledge to cut the numbers before the 2024 election.

This explains the absence of any serious Whitehall planning to operate a law that would require the arbitrary detention of perhaps tens of thousands of refugees prior to their expulsion. The government has signalled tentative plans to requisition two unused Royal Air Forces bases as detention centres, but has done little or nothing by way of concrete preparation. That’s unsurprising. The Home Office already has a backlog of 160,000 asylum seekers waiting to have their claims heard.

The promise to return new arrivals to their home nations or to “safe” third countries within 28 days rings equally hollow. So far Britain has an agreement with Albania to return its nationals and a legally-contested plan to render some undocumented arrivals to Rwanda. Even if the Rwanda plan is eventually deemed lawful, the two initiatives will deal with only a fraction of the numbers crossing the channel. 

Suella Braverman, the home secretary, is unabashed in her xenophobia, but will still struggle to make a case to repatriate refugees from, say, Syria, Afghanistan and Iran. Nations such as India and Pakistan refuse to accept so-called “returns”. And Tory hostility to any entanglement with Brussels stands in the way of an arrangement with the European Union that might allow refugees to be sent back across the channel. 

No matter. The government is playing politics. The first goal of the law is soaked in the cynicism of electoral calculation. Sunak wants to draw a pre-election dividing line with Keir Starmer’s Labour party by appealing to that segment of the electorate most vociferously opposed to immigration. Many of these voters are judged to be in the so-called Red Wall seats won from Labour at the last election - likely to be crucial to the outcome of the next. Braverman's crude attacks on lawyers and civil servants with alleged “leftie’’ sympathies are a prelude to blaming Labour when the entire plan fails.

For such Brexit diehards, the legislation, however, also has a deeper agenda. Their second goal is to detach Britain from the ECHR and thus throw up a roadblock against any rapprochement with the European Union. The convention, of course, is distinct from the Union. But its capacity to determine the decisions of British courts has long been a target of the English nationalists who sit on the extreme Tory right. A confrontation over immigration, they hope, would provide the excuse for Britain to join Vladimir Putin’s Russia in leaving the ECHR.

That in turn would put an end to any attempt at post-Brexit bridge-building with the European Union. This, for the diehards, is the third goal of the immigration bill. Though the institutions of the court and Union are separate, the terms of the convention provide an essential foundation for the Brexit trade and cooperation agreement. Britain’s departure would effectively void large sections of the deal - particularly those dealing with political and security co-operation. The Brexiters would have brought down the last cross-channel bridge. Britain would at last be secure in its isolation.

True, Downing Street officials say privately that Sunak would not go that far. The prime minister, they whisper, does not share Braverman’s extreme views. Perhaps. But in its contempt for European norms and values, the immigration bill sets a direction of travel. And it is far from clear that Sunak has control of the steering wheel.