The courts would probably block Nigel Farage’s attempts at mass deportation using British common law, even if he “unpicked Britain” from international human rights laws, former attorney general Dominic Grieve has warned.
The shot across the bows for Reform UK’s extreme proposals comes as Mr Farage prepares to lay out details on his plan on Tuesday morning.
Mr Grieve, who recently led the UK Governance Project, a commission which set out recommendations to restore confidence in decision-makers, has issued a scathing critique of Reform’s plans to crack down on the small boats and illegal immigration.
It comes as polling by YouGov has revealed that the public is losing confidence in Sir Keir Starmer to tackle the migration crisis, with 71 per cent saying he is handling it “badly” amid record numbers of small boats crossing the Channel, despite a new returns deal with France.
With disturbances in protests outside migrant hotels over the weekend, Labour has revealed details of trying to water down the impact of the European Convention of Human Rights (ECHR) and fast-track cases in a bid to get on top of the problem.
Mr Farage, whose party is leading in the polls, hopes to capitalise on the problems with his mass deportation plan.
He will set out plans for five deportation flights a day, dealing with 24,000 asylum seekers detained in holding centres at RAF bases. The Reform leader will also claim that return deals will be done with all countries to which those asylum seekers would need to be deported, including Iran, Afghanistan and Eritrea.
But speaking to The Independent, Mr Grieve has detailed both domestic and international obstacles that would emerge, even after forcing through massive legislative reforms that could leave Britain as an international pariah.
Most notably, he pointed out that getting rid of international agreements the UK has signed up to would not necessarily mean that the courts would allow Mr Farage, if he became prime minister, to simply deport irregular migrants or foreign criminals.
“This policy would require leaving the Refugee Convention, change your national domestic laws, which reflect the operation of the Refugee Convention, pull out of the European Convention on Human Rights (ECHR) and give the government through primary legislation essentially full powers to remove aliens who are regarded as being undesirable from the United Kingdom,” he noted.
But on what the courts might still do, he added: “You still can’t rule out that a court might – in the case of somebody where it was quite clear they were going to be deported, in circumstances where their lives would be seriously at risk in their home country – intervene to stop deportation under customary law or even the common law.”
On top of this, Mr Grieve envisages massive political upheaval caused by those protesting against the draconian policies of what would be Britain’s most right-wing government.
He said: “A section of the population will think the government is behaving terribly and failing to honour our obligations to genuine refugees. They will mount campaigns of various sorts against it. So it would be against the background of a pretty noisy, political narrative.”
But “the single biggest problem”, he warned, was that countries were unlikely to willingly take back illegal migrants and criminals.
International problems on returns
“Large numbers of these people destroy their own documentation, and therefore identifying precisely where they come from is not always easy,” he said.
“Now, the government would have to apply political leverage on those foreign states, including, I suppose, threatening them if they didn’t cooperate, but I think that would be necessary in order to achieve it, because in many cases there are… if you don’t have bilateral agreements, you’re going to have considerable difficulty.”
In terms of people who hold dual UK nationality with another country committing criminal offences, he also foresaw serious difficulties.
“There are very large numbers of people in this country, particularly from Pakistan and Bangladesh, who have dual nationality, even though they may be third-generation people living in Britain. If they haven’t got a passport, and the country concerned says, ‘I’m not going to give them a passport’, then you’re not going to be able to put them on a plane.”
But the impact of Britain removing itself from international law will have other consequences, Mr Grieve noted.
Top of these would be the collapse of the post-Brexit deal with the EU, which includes a provision that the UK must remain in the ECHR.
He said: “I certainly think that if the UK unpicks itself from international law without the support of other like-minded states, you are going to get zero cooperation from those other countries. You’ve got a whole host of political problems, because whilst on paper, you may say, ‘Oh, it doesn’t matter, we can get rid of the European Convention on Human Rights,’ the consequence is that the Trade and Cooperation Agreement [TAC] with the EU comes to an end. You are going to have to grapple with the consequences of that, in terms of the impact on trade, travel, sharing data, security and a whole host of other issues.”
A number of other concerns are being raised by critics of the plan, including the fate of the 31,000 women and girls who claim asylum each year but could be returned to countries like Iran and Afghanistan, where they would face human rights abuses because of their gender.
Added to that, it would take 18 months to build the detention centres required, leaving question marks over where the migrants who arrive in that period would be housed.
Then there are worries about costs. In April, former Reform MP Rupert Lowe and the Centre for Migration Control claimed the plans would cost £47.5bn, but Reform is now suggesting that figure would be £10bn.
The criticisms have been dismissed by Reform, with Mr Farage still set to lay out details of how it will work and the legal advice he has received.
A Reform UK spokesperson said: “Politicians have completely failed to stop illegal migration for years. Those like Dominic Grieve never even tried in the first place.
“Only Reform has the courage to do what must be done and deal with this problem head on.
“The only way to stop people coming into Britain illegally is to detain them and deport them.
“On Tuesday, we will outline a bold plan to do just that.”
