Farage faces legal headache in pushing through migration plans

Reform UK’s plans for dealing with illegal migration raise questions that would have serious implications for the UK’s international relations. But there are also questions as to whether they are legally feasible.

This is according to a new analysis by the Institute for Government, which looked at Farage’s plans for both the UK’s disengagement from international treaties and a radical programme of domestic legislation

This would include:

• Leaving the European Convention on Human Rights (ECHR).
• Disapplying the 1951 Refugee Convention, the UN Convention against Torture, and the Council of Europe Anti-Trafficking Convention.
• Repealing the Human Rights Act 1998 (HRA) and replacing it with a British Bill of Rights.
• passing an Illegal Migration (Mass Deportation Bill).

Leaving international conventions

Looking at the proposals to leave the ECHR and the Refugee Convention, the analysts concluded that it would be legally possible for the UK to leave these conventions, but that would come with major legal and political consequences – in particular for the Belfast/Good Friday Agreement and the UK-EU Trade and Co-operation Agreement. Withdrawal would require six months’ notice in the case of the ECHR, and 12 months’ notice in the case of the Refugee Convention.

Domestic legislation

Reform UK’s proposed legislation would include some elements which are familiar from the previous Conservative government, namely in repealing the HRA and replacing it with a “British Bill of Rights” (though it was then the policy of the Conservative government to remain in the ECHR); and imposing a legal duty on the home secretary to deport “illegal migrants” (section 2 of the Illegal Migration Act 2023 contains a similar duty, although this has not been brought into force).

In addition, Reform UK’s legislative package would:

• “Create a detention power without Hardial Singh constraints” (this is the case which sets principles governing when, and for how long, someone can be detained for immigration control purposes)
• Provide that if a person comes to the UK illegally, they are ineligible for asylum
• Create criminal offences of re-entering the UK after deportation, or of deliberately destroying one’s identity documents
• Provide that anyone who is deported is banned from re-entering the UK for life.

At this stage, the party has summarised its proposed legal approach in less than a page, but this would be hugely radical and complex legislation, and the detail would take much time to work out and to draft. 

Some questions and some possible limits 

Some of the questions that would need to be resolved in the drafting of the legislation include the following:

• The reference to “illegal” migrants implies that there would still be some legal migrants, including presumably genuine asylum seekers. How would these categories be defined, and who would decide which category an individual fell into?
• What role would the courts have in reviewing these and other decisions taken under the new legislation? A Reform UK government would no doubt want to minimise the role of the courts but where parliament has created legal rules – duties, obligations, rights, restrictions, controls, conditions – it is the role of the courts to interpret and apply those rules. 
  
  Previous attempts to oust the role of the courts have not gone well and would undoubtedly be challenged during the passage of the legislation through the Lords. Most recently, the Safety of Rwanda (Asylum and Immigration) Act 2024, passed under the last Conservative government, sought to exclude the courts from considering whether Rwanda was a safe country and from reviewing decisions to remove migrants there. These measures were highly controversial and have not been brought into force.
• In particular, what “rights” would replace the existing rights under the ECHR and HRA? How would those rights apply (if at all) to migrants, including asylum-seekers? How (if at all) could they be enforced or relied on in the courts?
• How would the legislation deal with common law rights – those rights developed by the domestic courts over centuries of case law, which opponents of the ECHR are fond of saying provide equivalent protection to it? There are, for example, long-standing common law protections against torture, mistreatment, or arbitrary detention, and rights to a fair hearing. 

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