Is the Tory infatuation with absolute sovereignty leading its immigration policy down a dark path?

If Priti Patel wants to pursue an Australian/Abbott-style approach, she will again have to resile the UK from another pillar of international law and standards of humanity, writes Sean O’Grady

The home secretary wants to pass legislation that trims and erodes the rights of asylum seekers (Home Office)

Watching Priti Patel paddling her way through her session with the House of Commons Home Affairs Select Committee any observer would be reminded of an unsafe dinghy, its destination vaguely set, but with more hope than expectation of arriving safely. Indeed, Ms Patel has committed a further £54m a year to pay the French border authorities to help bring back control of Britain’s borders. If past experiences is anything to go by, it will fail.

To be fair to the French, the number of boats intercepted before they get a chance to land on the British coast has been increasing – but so has the number of migrants getting through, roughly double the levels prevailing last year. Leaving aside moral, legal and economic arguments for a moment the sight (frankly) of people of colour, often young men, turning up in this informal fashion on the Kent coast has sent the Tory press, Tory MPs and Nigel Farage apoplectic. With no sense of proportion it is termed an “invasion” and their are self-fulfilling predictions of anger and citizen vigilantism. It may only be matter of time before pro- and anti-migrant/asylum activists mass on the beaches around Dungeness and Folkestone and scrap with the Coastguard, RNLI, police and Border Force officials over control of these bewildered groups of people. Having escaped civil wars in their own lands looking for peace and safety, they will find themselves caught in the cross-fire of a full-blown British culture war.

For about a quarter of a century British home secretaries have tried to “sort out” asylum and immigration, and failed. For a decade the official immigration limit of 100,000 has been missed, and has now been scrapped. Brexit has brought little change in terms of non-EU movement of people. Ms Patel wants to pass legislation that trims and erodes the rights of asylum seekers and the freedoms of those who wish to assist them find refuge. She says, perfectly fairly, that the system can be abused, and she wants to crack down on the people trafficking gangs. Yet it is not clear whether her measures will indeed do that. The numbers moving across continents and across the English Channel (often simply overstaying a visa or hiding in a vehicle) are simply too large. Like water flowing downhill, there will always be a route of least resistance, and it will be found. The migrants, of whatever description, will always get through. The old arrangements and cooperation with the French and EU have disappeared, post-Brexit.

Britain is on its own. Fundamentally there is no such thing as an “illegal asylum seeker” who can be easily shipped out because of two things. First the right to seek asylum (not be granted it) is absolute, open to all and must be processed properly. That is an obligation under the European Convention on Human Rights, which the British pioneered in 1951, and which has nothing to do with the European Union. It also requires the UK to obey rulings of the European Court of Human Rights (again, nothing to do with the Court of Justice of the European Union, or “European Court”). The question for Priti Patel and Boris Johnson is whether they are prepared, if needs be, to withdraw from the convention, or, more likely, ignore its provisions and rulings and risk being told off, shamed or even expelled. (Getting the rest of the continent to rewrite the convention is an even longer shot.) In other words, is Britain’s infatuation with absolute sovereignty and its fear of migrants so overwhelming that it will join Belarus as the only state outside the convention? If it is not, and outside the old collaborative structures of the EU, there is little that can practically be done about the dinghy people.

Doing what Ms Patel wishes to do will require a much more radical change in policy than she has thus far entertained, at least publicly

Much the same applies to the hardline option of using the royal navy and Coastguard to forcibly push migrant vessels out of British waters. This is how the Australian navy stemmed much of the seaborne traffic in asylum seekers from Indonesia and Southeast Asia, under intense political pressure. In Australia and even Jacinda Aderne’s New Zealand there is zero tolerance for such migration, and if any do get through they are apprehended and dispatched to hell-hole camps in Cambodia or Nauru, presumably to act as deterrent. Patel and indeed the government generally, are known to be close to the former Australian prime minister Tony Abbott, a conservative and enthusiastic advocate of that approach.

The problem there for Ms Patel (if not for Canberra) is again the international legal dimension. The 1982 United Nations Convention of the Law of the Sea mandates member states to “render assistance to any person found at sea in danger of being lost … to proceed with all possible speed to the rescue of of persons in distress…” There is nothing in the convention about letting them drown because they voluntarily went to sea in an unseaworthy vessel and they seek to abuse the system. The people in the boats also have human rights, whatever their status or even their intentions. If Ms Patel wants to pursue an Australian/Abbott-style approach, she will again have to resile the UK from another pillar of international law and standards of humanity.

That then is the logic of the situation. Doing what Ms Patel wishes to do will require a much more radical change in policy than she has thus far entertained, at least publicly. Apparent leaks from her department, suggesting for example setting up a camp for refugees in Rwanda (ie moving them there from Britain or France), does suggest that Mr Abbott’s ideas are being entertained. Given the government’s large majority, a prime minister who sees the Tory press as his boss, and also that the process of judicial review of such laws is to be weakened, Ms Patel might just go for it.