Rishi Sunak is gearing up for a battle with the courts over plans to prevent migrants who have crossed the Channel in small boats from appealing against their deportation.
The Home Office has drawn up two options to achieve the prime minister’s goal of automatically barring people who arrive in Britain illegally from claiming asylum, The Times has learnt.
The more radical proposal would take the unprecedented step of withdrawing the right of illegal arrivals to appeal against their automatic exclusion from the asylum system. A second proposal under consideration would only allow them to lodge an appeal after they had been deported.
At present, asylum seekers have the right to remain in the country to have their case heard. Critics of the appeal proposals said they would “start hitting problems from day one”.
Sunak has made his pledge to “stop the boats” one of his five priorities amid anger at the government’s failure to tackle the issue. A record 45,756 migrants crossed the Channel last year, a 60 per cent rise from 2021.
A separate proposal would bar migrants arriving illegally from using parts of the Human Rights Act to avoid deportation, such as claiming their right to family life or right to liberty was being breached.
Draft legislation is still being worked on but Sunak is hoping to present it this month. In an interview with TalkTV on Thursday he said the new law would enable the state to detain migrants who arrived illegally and deport them to their home country or a safe third country, such as Rwanda.
However, a report by the Refugee Council this week warned that, based on last year’s crossings, it would cost nearly £1 billion a year to detain all those who arrive.
A government source said: “The prime minister and home secretary are working flat out to bring forward the legislation as soon as possible and ensure that it is legally watertight.”
The legislation will make all individuals who enter the UK illegally permanently inadmissible to the asylum system, as previously revealed by The Times. It will effectively create an automatic ban on illegal entrants claiming asylum.
Home Office lawyers warned that this would simply lead to each individual lodging a judicial review, claiming it breached Britain’s obligations under the UN Refugee Convention. Suella Braverman, the home secretary, has drawn up the two proposals to avoid this scenario, which would delay removals and clog up the courts.
A source familiar with the thinking said: “There is a need to neutralise the right to challenge because effectively the new legislation will rule everyone permanently inadmissible and the risk is there’ll be many individual judicial review challenges. You’d have lots of lawyers issuing individual [judicial reviews] so the work is looking at neutralising the right to challenge the permanent inadmissibility decision.”
The first option would create what is known as an “ouster clause”, which aims to keep certain decisions out of the courts. Senior legal figures have condemned the plan, saying it would contravene the rule of law. They also pointed to a 2019 Supreme Court ruling that invalidated government attempts to use previous forms of ouster clauses.
The second proposal being considered by Braverman — only allowing illegal entrants to appeal against their exclusion from the asylum system once they have left Britain — is likely to cause similar controversy. The rule already applies to asylum seekers from countries on a Home Office list of “safe countries”, but would be extended to all illegal arrivals regardless of nationality.
A former Conservative minister said the proposals would put the government at odds with the judiciary, adding: “They’ve got to be so careful and you’re setting up a difficult clash if you don’t get it absolutely right.
“No 10 is assuring Tory MPs that they’re not going to be breaching international obligations but this will create difficulty and they will start hitting problems from day one. They’ll have the mother of all rows about it and ultimately how the courts interpret the legislation is another matter.”
Lord Falconer of Thoroton, a former Labour lord chancellor, predicted that the courts would stop the plans as they would “put the government beyond the reach of the law.”
He said: “No one in this country is above the law including the home secretary. I’m surprised she doesn’t remember that from her time as attorney-general. If she has forgotten I have no doubt the current attorney-general will remind her. And if she doesn’t, the courts will.”
Falconer described the second proposal, to only allow out-of-country appeals, as “pure political window dressing”. He said: “What country is going to accept a failed asylum seeker except the country from which the asylum seeker is fleeing? Certainly not France, from which the small boat has come. It’s just a pose. Because the government plainly could not deport them to those countries.”
A government source pointed out that Braverman was a barrister and former immigration lawyer and therefore “knows [the subject] inside out”.