Will the Tory 'Deportation Bill' work?

Legislating around the Human Rights Act — rather than confronting it head on — is almost guaranteed to fail

The Conservative Party published what they called a ‘Deportation Bill’ on May 7, but which was actually a series of amendments to Labour’s Border Security, Asylum and Immigration Bill, tabled at Commons Committee stage by Matt Vickers MP (and sponsored by Katie Lam MP, who has done excellent work recently criticising Labour’s approach to the rape gangs). Overall, stitching them together, the amendments represent both some welcome policy thinking on immigration and a hardening in stance on legal and illegal migration.

However, on the Human Rights Act 1998 (HRA) specifically, their approach is mostly symbolic; the basis for a good press release, not real change. It is unlikely to achieve the presumed aim: giving the Home Office more leeway to deport who they want.

First, some context. The United Kingdom has a ‘dualist’ system, which means that international obligations we’ve agreed to regarding the treatment of asylum seekers and refugees don’t automatically apply in UK law; rather, they only apply to the extent that they’ve been implemented in domestic law. For example, the European Convention on Human Rights (ECHR) applies in UK law via the HRA, which requires public bodies to act compatibly with the ECHR (and also applies via the body of case law based on legal actions under the HRA). The other major international treaty on asylum is the 1951 Refugee Convention, which is incorporated into various pieces of immigration legislation. Although Parliament is sovereign and can in theory do what it likes, including repealing or disapplying domestic law implementing international obligations, pieces of legislation affect one another, which in practice can stymie what a lawmaker thinks they’re achieving.

For Home Office officials, immigration and asylum decisions now require the application of a hugely convoluted patchwork of legal obligations, many rooted in international law, combined with almost guaranteed scrutiny of each decision by courts and tribunals. This has contributed to a long-term and pronounced decline in enforced returns — though we should note that this is only one part of the puzzle, with other pieces being a failure to enforce the law that is already on the books, a lack of detention and removal capacity, claimants becoming increasingly adept at gaming the system, allowing countries to refuse to accept their nationals, and a general squeamishness.

Of course, drafting doesn’t occur in a vacuum. Whoever drafted the Conservative amendment knew that they needed to continue to avoid answering the question of whether or not we should repeal the HRA and leave the ECHR until the relevant Conservative policy commission (or Kemi Badenoch herself) makes a firm decision. In my opinion, both steps are necessary, but not sufficient, to fix our dysfunctional and byzantine immigration and asylum framework.

Granted, at least in theory, you could just put the ECHR/HRA back into its box: there are only a few express restrictions on deportation within the ECHR, and it’s primarily HRA case law and the ‘living instrument doctrine’ of interpreting the ECHR (adopted by the European Court of Human Rights) which has made rights, such as the ‘right to respect for your family and private life’, such a blocker to deportation. Disapplication is one route to limiting their reach, and the clause takes a reasonable stab at that approach.

The main Conservative amendment on the HRA (NC33) was explained as a clause that would ‘…disapply the Human Rights Act and interim measures of the European Court of Human Rights in relation to this Bill and to other legislation about borders, asylum and immigration.’ It is worth considering in detail why this approach to disapplication of the HRA is unlikely to work. We can’t know conclusively how such provisions would be enforced by the Home Office and treated by the courts; however, we can guess, and the prognosis isn’t great. It is a continuation of the sort of fudge that the Sunak Government tried to death with the Illegal Migration Act 2023 (IMA) and the Safety of Rwanda (Asylum and Immigration) Act 2024: tinkering around the edges of fundamentally problematic concepts.

As it happens, none of the specific disapplications of the HRA in the IMA have ever been commenced, and are unlikely to ever be brought into force as Labour is repealing them in the Border Security Bill. The Conservative amendment is also extremely unlikely to pass. Nonetheless, given that Labour’s recent white paper on immigration has promised to ‘clarify’ Article 8 ECHR (right to family and private life) routes to residency, disapplication is likely to be tried again in the future in some form. If the drafting is not absolutely comprehensive — i.e., closes off every eventuality where the HRA could be applied to an immigration context — then the doctrine of implied repeal will apply, and the court will weigh up inconsistent statutory provisions.

Returning to the wording, subsection (2) of the clause requires a list of immigration legislation, detailed in subsection (1), to ‘…be read and given effect to disregarding the Human Rights Act 1998’. Disapplying the whole of the HRA is a subtle but welcome evolution of the position that the Conservatives adopted when they were in government in passing the IMA, which only disapplied parts of the HRA: namely, section 3 of the HRA (duty to read legislation compatibly with ECHR rights) for the whole IMA, and section 6 (requirement for public authorities to act compatibly with ECHR rights) in specific places. The Sunak Government took a similar approach to the HRA in the Safety of Rwanda Act. Full disapplication of the HRA by the Conservative amendment eliminates the prospect of a declaration of incompatibility of the legislation with the ECHR (under the HRA) by a court.

To their credit, whoever was responsible for drafting the Conservative amendment has also attempted to extend the HRA disapplication to decisions and actions under immigration legislation, including ‘…the enforcement of immigration policy, deportation, the granting, removal, revocation or alteration of immigration status, or asylum, or other entitlements.’ Additionally, they have sought to repeal domestic law references to the Refugee Convention and addressed interim measures of the European Court of Human Rights. That said, as explained below, it’s nowhere near a complete list of legal impediments to immigration decisions, and by focusing on the HRA it doesn’t even fully cover off the ways the ECHR affects immigration.

There’s also the more general point we must make about this approach: that it involves tiptoeing around (or leaving to the courts) fundamental issues that are better confronted head on. When the Illegal Migration Bill was introduced into the House of Commons, then Home Secretary Suella Braverman was unable to state that the Bill was compatible with the ECHR (one of the soft compliance mechanisms within the HRA). Bizarrely, the Home Office explained in detail in the accompanying ECHR memorandum why the Bill was compatible with various ECHR rights, whilst simultaneously trying to exclude their application to the IMA by virtue of disapplying the HRA.

Spoiler alert: it didn’t work. The IMA has already been partly struck down in Northern Ireland (Re Northern Ireland Human Rights Commission) based on incompatibility with EU asylum legislation in scope of the Windsor Framework (or Northern Ireland Protocol), which is given supremacy over other UK law by s.7A of the EU Withdrawal Act 2018. The Conservative amendment does not attempt to address this little-known remnant of the supremacy of EU law. The Northern Irish court also declared various sections of the IMA to be incompatible with the ECHR for good measure.

Then, as mentioned above, there is the further question of whether stopping the HRA applying to immigration and decisions even deals with all the ways that the ECHR has effect in domestic law. The Immigration Rules, which govern the administration of immigration laws, apply Article 8 of the ECHR directly in considering whether a foreign national should be excepted from deportation on the basis of their private life in the UK. The Conservative amendment, which disapplies the HRA with regard to the Immigration Rules, means that the Home Secretary is not required to act compatibly with the ECHR when writing them, but it does not remove all references to the ECHR from the Immigration Rules. Nor does it alter the status of ECHR rights as they have been transplanted into domestic case law.

That’s not even to mention the prospect — not entirely squashed by the court in FDA v Cabinet Office (which related to ignoring interim measures from the Strasbourg Court in the context of the Rwanda scheme) — that civil servants can refuse to implement policy that they consider is in breach of the obligation to comply with the law in the Civil Service Code. The amendment also misses things which, although well-intentioned, act as blockers to removals such as ‘modern slavery’ and the duty to safeguard and promote the welfare of children.

Overall, the Conservative amendment continues in the spirit of the Sunak Government: trying to legislate around fundamental issues, rather than confronting them head on (i.e., repealing them). The culmination of this approach was the Safety of Rwanda Act. Rather than curtailing the application of the principle of non-refoulement, that refugees cannot be returned to a country found to be unsafe, it instead told decision makers that they must treat Rwanda as a safe country, in spite of the fact that a court had (rightly or wrongly) already found that it was not.

Ultimately, only so much fault can be found in a particular drafting approach. Fixing this all will take politicians with the moral courage to say that our current approach to asylum and deportation decisions plainly doesn’t give us control of our borders and is producing nonsensical outcomes, and therefore needs drastic rewriting and simplification.

We need to move to an immigration system that is less discretionary for decision-makers, as any exercise of discretion can be judicially reviewed for procedural compliance. There’s no way to do this whilst keeping The Guardian and the ‘human rights’ lobby happy, so why continue to try?

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Image credits: UK Prime Minister, Creative Commons Attribution 2.0

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This article was written by Amar Johal, a Pimlico Journal contributor. Have a pitch? Send it to pimlicojournal@substack.com.

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